Court File and Parties
COURT FILE NO.: CV-22-14 DATE: 2023/01/18
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
THE CORPORATION OF THE MUNICIPALITY OF MISSISSIPPI MILLS Applicant – and – BRYANT COUGLE and BRYLIN CONSTRUCTION LTD. Respondents
COUNSEL: Joshua Vickery and Kelly Santini LLP for the applicant Bryant Cougle, self-represented Brylin Construction Ltd., unrepresented
HEARD: September 23, 2022
Reasons for Judgment
Justice H. J. Williams
1On November 21, 2022, I granted the application and found the respondents, Bryant Cougle and Brylin Construction Ltd., a company of which Mr. Cougle is the only director and officer, to be vexatious litigants under s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C. 43. In my November 21, 2022 endorsement, I said that my reasons would follow. These are my reasons.
Mr. Cougle’s adjournment request
2When the parties appeared before me on September 23, 2022, Mr. Cougle requested an adjournment of the hearing. Mr. Cougle said that he would not be able to stay, because he had to return to his job as a school bus driver. Mr. Cougle also said that he had retained an Ottawa lawyer, Mitchell Rowe, but that Mr. Rowe had not been available to attend the hearing. Mr. Cougle also said that Johnston J. had assured him that the hearing would be adjourned. Mr. Cougle said that he would like the hearing to be scheduled for November 24, 2022 or later; he explained that he already had a motion scheduled to be heard on November 24, 2022.
3In Ariston Realty Corp. v. El Carim Inc. et al., at para. 34, Perell J. considered the factors a decision-maker may weigh in exercising their discretion in response to an adjournment request. These factors include the overall objective of a determination of the matter on its substantive merits; the principles of natural justice; that justice must not only be done but appear to be done; the particular circumstances of the request for an adjournment and the reasons and justification for the request; the practical effect or consequences of an adjournment on both substantive and procedural justice; the competing interests of the parties in advancing or delaying the progress of the litigation; the prejudice not compensable in costs, if any, suffered by a party by the granting or the refusing of the adjournment; whether the ability of the party requesting the adjournment to fully and adequately prosecute or defend the proceeding would be significantly compromised if the adjournment were refused; the need of the administration of justice to orderly process civil proceedings; and the need of the administration of justice to effectively enforce court orders.
4After considering the arguments of both parties the factors identified by Perell J. in Ariston, I denied Mr. Cougle’s adjournment request:
5After making some inquiries of Mr. Cougle about his job as a bus driver, I was satisfied that he would be able to remain in court for the duration of the time allotted for the hearing.
6I was not persuaded by Mr. Cougle’s submission that the hearing should be adjourned because he had retained counsel. Mr. Cougle had had ample notice of the hearing date. The Municipality of Mississippi Mills (“the Municipality”) had made it clear to Mr. Cougle that it would not consent to an adjournment request. In my view, if Mr. Cougle had wanted to be represented by counsel at the hearing, he should have retained a lawyer who was available to attend the hearing. As I will explain below, the hearing had already been adjourned once, on consent, because Mr. Cougle had retained counsel who were not able to comply with the timetable for the application. Further, the Municipality’s lawyer, Joshua Vickery, said that he understood that Mr. Rowe had been retained in respect of Mr. Cougle’s November 24, 2022 motion and that Mr. Rowe had not given any indication to Mr. Vickery that he would be representing Mr. Cougle at the s. 140 hearing or that an adjournment would be requested.
7As I said, the hearing had already been adjourned once, at Mr. Cougle’s request. the Municipality’s application record had been served in March 2022. Mr. Cougle retained counsel. The parties’ counsel agreed to a hearing date of July 21, 2022, and to a timetable for the steps leading up to the hearing. The July 21, 2022 hearing date was confirmed with the court in Perth on April 1, 2022. On June 4, 2022, Mr. Cougle wrote to the Municipality’s lawyer and said that he had terminated his counsel’s retainer. Mr. Cougle retained new counsel. Mr. Cougle’s new counsel requested an adjournment of the July 21, 2022 hearing date because their vacation schedule conflicted with steps in the application’s timetable. On June 16, 2022, the hearing was adjourned, on consent, to September 23, 2022. Mr. Cougle’s counsel did not file a notice of change of lawyer and in August 2022, Mr. Cougle informed the Municipality’s counsel that he would be representing himself. Mr. Cougle served his responding affidavit on August 10, 2022.
8I do not accept Mr. Cougle’s submission that Johnston J. had told him that the hearing would be adjourned. Mr. Cougle and Mr. Vickery had appeared before Johnston J. the week before the hearing before me. Mr. Cougle had brought a motion to transfer the s. 140 application to Ottawa from Perth on the basis that he had encountered judicial bias in Perth. Johnston J. denied Mr. Cougle’s request. In his endorsement dated September 19, 2022, Johnston J. said that Mr. Cougle had also requested an adjournment of the s. 140 hearing. Johnston J. said that the adjournment request was not properly before him and that the motion that was before him, the transfer request, was likely intended to obtain an adjournment. Johnston J. said the s. 140 hearing would be heard by a judge from Ottawa. There was no suggestion in Johnston J.’s endorsement that Johnston J. had told Mr. Cougle that the Ottawa judge would adjourn the hearing.
9The Municipality’s counsel said that Mr. Cougle had informed him on September 21, 2022 that he would be requesting an adjournment of the s. 140 hearing so that he could proceed with a contempt motion against the Municipality that he had just scheduled for November 24, 2022. Mr. Cougle had brought his motion under the same court file number as this application. I note that Mr. Cougle’s motion record was filed two days after Johnston J. denied Mr. Cougle’s request to have the application transferred to Ottawa and refused to consider his adjournment request.
10I considered all of the reasons Mr. Cougle offered in support of his adjournment request and was unable to find any of them compelling. It was evident that Mr. Cougle simply did not want the s. 140 application to be heard and, if it had to be heard, he wanted it to be postponed so that the Municipality would have some time to think about his November 24, 2022 motion. Mr. Cougle had known about the Municipality’s application since March. He had known since early August that he would be representing himself. He had delivered his evidence. As I will explain below, being served with a record in a vexatious litigant application did not discourage Mr. Cougle from making derogatory allegations about the Municipality and its current and former employees, a prime example being the motion he had scheduled for November 24, 2022 in which he alleged contempt of court, collusion, bribery, perjury, obstruction and libel.
11In all of the circumstances, I was satisfied that the Municipality’s interest in having the application heard outweighed Mr. Cougle’s desire to postpone it and also that it would not be unfair or prejudicial to Mr. Cougle to refuse his adjournment request.
The s. 140 vexatious litigant application: Some legal principles
12Section 140(1) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, provides that “where a judge of the Superior Court of Justice is satisfied, on application, that a person has persistently and without reasonable ground, (a) instituted vexatious proceedings in any court; or (b) conducted a proceeding in any court in a vexatious manner, the judge may order that, (c) no further proceeding be instituted by the person in any court; or (d) a proceeding previously instituted by the person in any court not be continued, except by leave of a judge of the Superior Court of Justice.”
13A vexatious litigant order is an extraordinary remedy that alters a person’s right to access the courts: Lukezic v. Royal Bank of Canada, 2012 ONCA 350, at para. 12. Such an order does not strip a person of their right to begin legal actions; it implements a process of judicial supervision over the individual’s initiation of proposed proceedings, to ensure there is a reasonable basis for the proceeding: Dobson v. Green, 2012 ONSC 442, at para. 8.
14To determine whether a party has acted in a vexatious manner, the courts repeatedly seek guidance from Re Lang Michener et al. and Fabian et al. (1987), 59 O.R. (2d) 353 (H.C.) in which Henry identified the following principles:
a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding;
b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;
c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;
d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;
e) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action;
f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious;
g) the respondent's conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.
15A person’s behaviour both in and out of the court has been held to be relevant to the determination of whether the person qualifies as a vexatious litigant. In one case, the court noted that frivolous and unsubstantiated allegations of impropriety had been levelled against lawyers who had acted for or against the respondent. In another case, the court considered that the respondent had failed to appear on several occasions and had shown disregard for the court. (Bishop v. Bishop, 2011 ONCA 211 at paras. 8-9.) In GoodLife Fitness Centres Inc. v. Hicks, 2019 ONSC 4942, at paras. 65–70, Corthorn J. identified the number and nature of emails that had been sent by the respondent as a significant concern and concluded that the emails, together with the proceedings commenced by the respondent, formed part of an overall strategy of abuse and harassment.
The issue
16The issue on this application is whether I am satisfied that Mr. Cougle and/or his company, Brylin Construction Ltd., has/have persistently and without reasonable ground, (a) instituted vexatious proceedings in any court; or (b) conducted a proceeding in any court in a vexatious manner.
17If I am satisfied that this is the case, I must then decide whether Mr. Cougle, Brylin Construction Ltd. or both should be prohibited from instituting or continuing proceedings without leave of a judge of the Superior Court of Justice.
Factual background
Chronology
18In the early 1970s, Mr. Cougle purchased about 24 acres of property in the Town of Almonte, which is now within the Municipality. Mr. Cougle says the property was designated “residential and commercial” but that, when he later refused to sell the property to the Town, without notice to him, it changed the zoning to “industrial.”
19In 1981, Mr. Cougle went to the Ontario Municipal Board to request a zoning change. The OMB dismissed his request, finding that it was premature.
20In early 2010, Mr. Cougle submitted a proposal to the Municipality to build condominium and apartment buildings on his property. That fall, Mr. Cougle applied for an amendment to the Municipality’s Official Plan to change the land use designation of his property from industrial to residential. Mr. Cougle’s application was denied on the basis that he had failed to complete certain studies that were required by the Municipality before it would consider his proposal further. The Municipality informed Mr. Cougle that, for his application to be considered complete, a serviceability report, a traffic impact study, a detailed concept plan, a Phase 1 Environmental study and other reports or studies would be required.
21Mr. Cougle then applied to the OMB for an order deeming his application complete. A hearing was scheduled for the summer of 2011. Mr. Cougle failed to serve his materials on the Municipality and, as a result, the hearing was adjourned. The OMB ordered Mr. Cougle to undertake several of the required studies before the hearing would be rescheduled and ordered costs against him.
22In 2012, Mr. Cougle started two actions in the Small Claims Court, one against the Municipality and one against its former planner, Stephen Stirling. The actions were, at least in part, in respect of comments Mr. Stirling is alleged to have made about Mr. Cougle’s proposed development. The actions were dismissed, and costs were awarded against Mr. Cougle.
23In 2018, Mr. Cougle and his spouse Susan Hodges started an action against the Municipality in the Superior Court of Justice seeking $9,290,200 in damages. Mr. Cougle and Ms. Hodges alleged that the Municipality and its employees were engaged in a conspiracy against Mr. Cougle in respect of his plans to develop his land. The $9,290,200 in damages represented $1,100,000 for the value of Mr. Cougle’s land, $200 because Mr. Cougle had been forced to provide 11 hard covers for a housing study in 2012 and $8,190,000 in punitive damages.
24The Municipality defended the 2018 action, in part, on the basis that it was a collateral attack on prior judicial decisions, as the subject matter of the action had been raised in Mr. Cougle’s 2012 Small Claims Court actions.
25The 2018 action was settled on June 8, 2018, when the parties signed minutes of settlement in which Mr. Cougle and Ms. Hodges agreed to a without-costs dismissal of their action. Under the terms of settlement, Mr. Cougle and Ms. Hodges agreed that they owed the Municipality “$10,500 in liquidated damage for the defence of this action”. The parties agreed that the Municipality would not take steps to collect the $10,5000 as long as Mr. Cougle and Ms. Hodges complied with the terms of a full and final release, in which they would release the Municipality and all current and former employees from any and all liability in respect of all matters which were the subject of the action. As part of the settlement, Mr. Cougle and Ms. Hodges both signed a release to this effect.
26In 2019, Mr. Cougle’s company, Brylin Construction Ltd., started two actions against the Municipality, one in Small Claims Court and the other in the Superior Court. Mr. Cougle is the only officer and the only director of Brylin. A corporate search shows that Brylin’s previous name was Bryant Cougle Enterprises Limited.
27Brylin’s 2019 Small Claims Court action alleged fraud against the Municipality and claimed $3 million in punitive damages. It alleged bias against “Stirling” [the Municipality planner Stephen Stirling] and “Smithson” who is Diane Smithson, the Municipality’s former Chief Administrative Officer. Referring to the studies the Municipality had required before it would consider Mr. Cougle’s application to change his property’s land use designation, the claim stated that “all studies were done” and alleged that Stirling had disposed of them.
28The Municipality defended the 2019 Small Claims Court action on the basis that it was statute-barred and that it was a collateral attack on prior judicial decisions, as it raised the same issues Mr. Cougle had raised in his two 2012 actions and his 2018 action.
29About a month after the Municipality served its statement of defence in the 2019 Small Claims Court action, Brylin started its action in the Superior Court, in which it claimed $31 million in damages. In its statement of claim, Brylin responds to the Municipality’s defence to its Small Claims Court action. Brylin referred to the Municipality’s former CAO, Ms. Smithson, and alleged bias against “SS”, planner Stephen Stirling. Although Brylin, a corporation, was the plaintiff, the statement of claim made references to “my father” and “my homes” and said that, in the 1970s, “I was attacked on the basketball court by [municipal official] Mr. Houston”, which strongly suggested that the real plaintiff was not a company but an individual. The action alleged fraud against the municipality. The issues raised in Brylin’s 2019 statement of claim arose from the same facts as Mr. Cougle’s 2012 actions, Mr. Cougle and Ms. Hodges’ 2018 action and Brylin’s 2019 Small Claims Court action.
30In August 2019, the parties agreed that Brylin would discontinue the 2019 Small Claims Court action on a without-costs basis and that the issues raised in the action would be dealt with in Brylin’s Superior Court action.
31The Municipality then requested a stay of Brylin’s Superior Court action under Rule 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, on the basis that it appeared to be frivolous or vexatious or otherwise an abuse of the process of the court. On September 10, 2019, Mr. Cougle responded with a nine-page letter to the court, in which he recounted the history of his interactions with the Municipality, dating back to his purchase of the 24 acres in the 1970s. In his letter, Mr. Cougle alleged conspiracy. He described the zoning change in the 1970s to industrial as an “illegal switch” that the town continued to hang its hat on. He said that there has been an injustice done to him for 43 years. On November 4, 2019, Mr. Cougle wrote a further letter to the court. He said he had been in serious trouble with the law in 1965 when he was 19 and that he believed that several municipal councillors had never forgotten that, and that, consequently, they voted against everything he proposed. He said his land is now very valuable. He accused the Municipality of collusion. He raised the issue he had with the planner, Mr Stirling. He said “there is no vexation here” because he believed the town had been covering up fraud since 1976. He said his action would end years of abuse.
32On November 13, 2019, Pedlar J. dismissed Brylin’s 2019 Superior Court action under Rule 2.1. Pedlar J. noted that Mr. Cougle’s 2018 Superior Court action and Brylin’s 2019 Superior Court action were essentially the same, except that one had been brought by the principals of a corporation, and the other had been brought by the corporation. 1 Pedlar J. awarded the Municipality $1,500 in costs. Pedlar J. also dismissed Brylin’s 2019 Small Claims Court action, on the same basis.
33Five months after Pedlar J. dismissed Brylin’s action under Rule 2.1, Mr. Cougle served an unissued statement of claim dated April 16 2020 on the Municipality. The statement of claim named the Municipality and a number of individuals, including Ms. Smithson, as defendants. This time, both Mr. Cougle and Brylin were plaintiffs. The plaintiffs claimed $54 million in damages. They accused the defendants of trying to bankrupt them for 44 years. The statement of claim recounted the history of the plaintiff’s interactions with the Municipality since the 1070s. It concluded with the following paragraphs:
- If and when you the town wishes to have a motion to dismiss, I will be requesting a change of venue because of all the disgusting actions the town has done to me.
- Lets get this to trial is all I ask. I have tried to use civil language here but it just doesnt come out. I was conspired by years and years of councillors bias and this land is not a NIMBY issue.
- I have a lawyer who will get involved if you wish to settle. Hopefully you still have liability insurance as the 100,000 worth of legal fees you have spent trying to get me would discourage any company.
34On July 25, 2020, Mr. Cougle sent an email to Ontario’s Premier and its Minister of Municipal Affairs and Housing, demanding that the Minister send a letter to the Municipality directing it to change the zoning of his land in the official plan to residential. In July and August, he sent several further emails to the Premier, the Minister, Ontario’s Attorney General and the Municipality’s employees.
35In response to the steps Mr. Cougle took after he and Ms. Hodges signed the minutes of settlement and full and final release in favour of the Municipality, Municipality instructed its counsel to take steps to enforce the terms of the June 8, 2018 settlement. The Municipality’s counsel wrote to Mr. Cougle on March 11, 2021 to inform him that the Municipality would be moving to enforce the settlement.
36Mr. Cougle responded by denying in correspondence that he had breached the terms of the settlement. He accused the Municipality’s employees of accepting bribes. Mr. Cougle also said the Minister of Municipal Affairs and Housing had caused the situation in the first place by not stepping in to change the Official Plan back to residential zoning, as he had requested.
37The Municipality brought a motion to enforce the settlement. On the May 28, 2021 return date of the motion, Mr. Cougle appeared and consented to an order that required him to pay the Municipality the $10,500 owed under the minutes of settlement plus $2,450 in costs for the motion. The costs were to be paid within 30 days.
38In December 2021, Mr. Cougle paid the costs he was ordered to pay, in full. He also sent an email to the Municipality’s CAO Ken Kelly and others, informing them that he would be “going to court using mandamus.” In his email, Mr. Cougle said the Municipality could avoid his upcoming court proceeding by agreeing to a number of demands, including zoning changes, permits that would allow for immediate development, $45 million from the Municipality’s insurance company and a further $26 million, which Mr. Cougle said was the amount he would have made had the Municipality not stopped his development. Mr. Cougle gave the Municipality one week to respond. Mr. Cougle said that his “motion” would describe 25 incidents in which the town had conspired against him and his company, how staff took bribes from his competition, obstruction and contempt of court.
39The Municipality issued its notice of application to declare Mr. Cougle and Brylin vexatious litigants under s. 140 of the Courts of Justice Act in February 2022. It served its application record in March 2022.
40In late April 2022, Mr. Cougle wrote to the Ontario Provincial Police, asking it to investigate the Municipality and alleging conspiracy. Mr. Cougle wrote to the Municipality’s counsel in May 2022, saying that he was confident that conspiracy charges are imminent.
41The relevant chronology from June 2022 to the date of the hearing before me, including the motion before Johnston J. on September 16, 2022, was set out in my consideration of Mr. Cougle’s request for an adjournment of the September 23, 2022 hearing date, above.
Other conduct
42In addition to or in conjunction with the legal proceedings Mr. Cougle initiated or threatened to initiate against the Municipality, Mr. Cougle also sent a barrage of email correspondence to the Municipality’s employees and officials, in which he accused them of bias, fraud, bribery and conspiracy and other wrongdoing.
43Mr. Cougle also sent emails airing his grievances about the Municipality to the Prime Minister, members of Parliament, the Premier of Ontario (as noted above), the Attorney General of Ontario, Ontario’s Ministry of Municipal Affairs and Housing (as noted above), The Law Society of Ontario, the Ontario Provincial Police (as noted above), Ontario’s Ombudsman and journalists. In these emails, Mr. Cougle did not hesitate to single out the Municipality’s employees or officials who had crossed him. For example, on February 6, 2020, Mr. Cougle wrote to the Prime Minister and the Attorney General of Ontario and asked that the Municipality’s CAO, Mr. Kelly, be held in contempt.
44I accept the Municipality’s evidence that Mr. Cougle made an application under Ontario’s Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, requesting information about the Municipality’s policy for liability insurance. The basis for his request was that he was “suing for a lot of money.” The request was processed, and Mr. Cougle was informed that the documents were available to be picked up. Mr. Cougle did not pay the $5 processing fee or pick up the documents but has said on numerous occasions that the Municipality had rejected his request and refused to provide him with information.
45Mr. Cougle also sent numerous emails to the Municipality’s counsel and the Law Society of Ontario, accusing counsel of not providing him with information relevant to his claim. In other emails to the LSO, Mr. Cougle said that the Municipality’s counsel had failed to provide him with the information he had requested in his Freedom of Information Act request. In one of these emails, Mr. Cougle repeated his allegations of bribery against the Municipality.
46Mr. Cougle repeatedly ignored both a 2019 Small Claims Court order requiring him and requests from the Municipality’s counsel asking him to communicate with the Municipality or its employees only through its counsel. For example, on April 21, 2020, the Municipality’s counsel wrote to Mr. Cougle to ask him not to engage in direct communication with the Municipality. Mr. Cougle wrote directly to the Municipality the following day. The Municipality’s counsel repeated her request that Mr. Cougle not communicate directly with the Municipality. Mr. Cougle then sent emails to the Municipality’s employees on June 9, 20, 12, 16, 19 and 22, 2020. A further email request to Mr. Cougle to the same effect on June 22, 2020 was also ignored; Mr. Cougle sent an email to the Municipality on June 24, 2020 and then continued to do so.
Analysis
47I am satisfied that Mr. Cougle, both personally and though his company, Brylin, has both instituted vexatious proceedings and conducted proceedings in a vexatious manner.
48As is evident from the chronology, above, Mr. Cougle, either personally or through Brylin, brought successive legal actions in 2012 (two Small Claims Court actions), 2018 (one Superior Court action) and 2019 (one Small Claims Court action and one Superior Court action), all related to Mr. Cougle’s land purchase in the 1970s, his unsuccessful efforts to rezone the land and his dealings with the Municipality, its officials and its employees. All of these actions were dismissed. The 2018 action was settled and then dismissed by a consent order.
49The pleadings in the 2012 Small Claims Court actions were not before me, which limits the findings I am able to make in respect of the extent to which the subsequent actions raised the same issues. That said, according to a letter Mr. Cougle sent to the Superior Court on September 10, 2019, Mr. Cougle started one of these actions against the Municipality in Perth and one against Mr. Stirling in Ottawa. Both actions, at least in part, related to Mr. Stirling’s alleged characterization of Mr. Cougle’s proposed development as “ghetto homes”. According to Mr. Cougle, the outcome of the Perth action “was that Mr. Stirling could have his opinion”. Mr. Cougle said the Deputy Judge told Mr. Stirling that he should recuse himself from any more dealings with Mr. Cougle and Brylin. Mr. Cougle admitted that he submitted the same claim against Mr. Stirling in the Small Claims Court in Ottawa. He said that this was because Mr. Stirling lived in Ottawa. Mr. Cougle said that due to work commitments, he had had to go out west and should have asked the Ottawa court to defer the trial, but he did not know that he could defer and if he had, the outcome would have been different. It is not in dispute that both of the 2012 Small Claims Court claims were dismissed.
50Mr. Cougle’s allegation that Mr. Stirling described Mr. Cougle’s housing as “ghetto homes” was repeated in Mr. Cougle’s and Ms. Hodges’ 2018 action, in Brylin’s 2019 Small Claims Court action, in Brylin’s 2019 Superior Court action, in Mr. Cougle’s and Brylin’s 2020 unissued statement of claim and in the motion record for the motion scheduled for November 24, 2022, which was also addressed to Mr. Stirling. Mr. Cougle has, therefore, either personally or through his company, been recycling his allegation against Mr. Stirling in pleadings for 10 years, even though the issue was decided against him the first time he raised it in 2012. I find that the repetition of this allegation against Mr. Stirling in successive proceedings over the course of a decade amounts to vexatious conduct.
51Mr. Cougle, through Brylin, started the two 2019 actions against the Municipality even though he and Ms. Hodges had consented to an order dismissing their 2018 action, which dealt with the same subject matter, and signed a full and final release in which they agreed to release the Municipality, its employees, agents and others from all claims relating to their ownership of land in the Municipality. By starting the 2019 actions in Brylin’s name, Mr. Cougle breached the spirit, if not the letter, of the release he and Ms. Hodges had signed. By doing this, I find that Mr. Cougle conducted litigation in a vexatious manner.
52For the following reasons, I also find that both Mr. Cougle and Brylin instituted vexatious proceedings when the two 2019 statements of claim were issued: (1) Pedlar J. has already determined that the two proceedings were vexatious. On November 13, 2019, Pedlar J. dismissed Brylin’s 2019 Superior Court action under Rule 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and specifically found that the action was frivolous, vexatious and an abuse of process. Pedlar J. found that Brylin’s 2019 action was in essence the same as Mr. Cougle’s and Ms. Hodge’s 2018 action. Pedlar J. also dismissed Brylin’s 2019 Small Claims Court action, noting that the dismissal was in accordance with his ruling in respect of the Superior Court action. (2) Although Brylin was the named plaintiff in the two 2019 actions, there is no doubt that Mr. Cougle, the company’s only director and officer, was the true litigant in the actions. Mr. Cougle is named as Brylin’s representative in the Small Claims Court pleading. Even more telling, Mr. Cougle’s name and residential address appear in the space provided for the “Name, address and telephone number of plaintiff” at the conclusion of the Superior Court pleading. Further, portions of both claims are written in the first person and clearly in Mr. Cougle’s voice. For example, in the Small Claims Court action, Brylin pleaded that “[a]ll studies were done and I believe Stirling disposed of them.” In the Superior Court action, Brylin pleaded: “It was shortly after that that I was attacked on the basket ball court by Mr. Houston. I defended my self. I did not know this guy and I believe he did this to get at my father. Councillors were present and they took Mr Houstons side and thus changed the OP [Official Plan] to industrial without our permission”
53Less than six months after Pedlar J. found the 2019 actions to be vexatious, Mr. Cougle again took aim at the Municipality. In April 2020, Mr. Cougle served an unissued statement of claim on the Municipality in which he claimed $54 million. In what appears to have been the last straw for the Municipality and the trigger for its vexatious litigant application, in December 2021, Mr. Cougle informed the Municipality that he would be “going to court using mandamus”. Just two days before the hearing before me, Mr. Cougle filed a record for a motion returnable two months after the hearing, on November 24, 2022. Mr. Cougle addressed the motion record to Mr. Stirling and Ms. Smithson as well as the Municipality and repeated some of the allegations he had made about all of them in his earlier pleadings.
54When Mr. Cougle took these steps in 2020, 2021 and 2022, he obviously knew that he had released the Municipality from all claims relating to his property and the zoning issue in June of 2018. He also knew that Pedlar J. had found Brylin’s 2019 actions to be vexatious because they covered the same ground the 2018 action, which dealt with the same issues Mr. Cougle was once again threatening to revisit. Although Mr. Cougle did not actually “institute” any new actions in 2020, 2021 and 2022, I consider his service of an unissued claim, his threat to seek mandamus and his November 24, 2022 motion to constitute vexatious conduct.
55I consider it to be telling that Mr. Cougle’s and/or Brylin’s claims for damages increased with each successive proceeding or threatened proceeding against the Municipality, from about $9 million (2018 Superior Court action) to $31 million (2019 Superior Court action) to $54 million (unissued claim served April 16, 2020) to $71 million (email threatening mandamus). I am satisfied that no reasonable person could reasonably have expected to obtain relief of this magnitude, or any relief, through these proceedings. I see the steady inflation of the claims to be an indication that the actions were brought for an improper purpose. Mr. Cougle has made repeated and fruitless efforts to use the legal process to harass and threaten the Municipality, perhaps in the hope that it will one day decide that capitulation is the path of least resistance and invite him to the negotiation table. The strategy has not worked well for Mr. Cougle so far. The progressive increase in Mr. Cougle’s damages claims appears to me to be an effort to turn up the volume, when the previous proceeding and threatened proceeding have not achieved the results he seeks.
56Mr. Cougle’s conduct does not demonstrate all of the hallmarks of vexatiousness identified by Henry J. in Lang Michener. For example, Mr. Cougle has agreed to discontinue some of his proceedings. He has paid costs awards. That said, many of the Lang Michener hallmarks are unmistakable: Mr. Cougle has brought proceedings to determine issues that have already been decided; he has brought actions that obviously cannot succeed; he has brought or threatened actions for an improper purpose; he has rolled forward, repeated and supplemented grounds and issues into subsequent actions; and he has made accusations against the Municipality’s lawyers. Unhappy with the Municipality’s lawyers and the outcome of his appearances in court, Mr. Cougle has sent correspondence to the lawyers’ regulating body, the Law Society of Ontario, and has either threatened to report or reported judges to the Canadian Judicial Council.
57In the affidavit he filed in response to the Municipality’s s. 140 application and in his oral submissions, Mr. Cougle repeated the history of his purchase of the 24 acres, his efforts to rezone and his dealings with the Municipality. He raised his complaints about Mr. Stirling and Ms. Smithson. He also accused a former lawyer of the Municipality of having blackmailed him and Ms. Hodges into signing the 2018 settlement agreement, noting that blackmail is a criminal offence. He alleged conspiracy. He accused another former lawyer of the Municipality of being part of the conspiracy. He accused Ms. Smithson and a Municipal councillor of accepting bribes and the Municipality’s CAO of slapping him.
58In his oral submissions, Mr. Cougle repeatedly assured me that it had never been his intention to “vex” anyone. He asked me to bear in mind that he is not a lawyer. He said that he had had no choice but to come to court, given the way he had been treated by the Municipality. He pleaded with me not to release my decision in the s. 140 application until after November 24, 2022, the return date of his motion. He described the November 24, 2022 date as a “trial” and said that the trial must be allowed to proceed because he has been fighting this battle against the Municipality for 47 years. Mr. Cougle promised not to take any further steps against the Municipality.
59Mr. Cougle is clearly extremely frustrated by his situation: He purchased property with a plan to develop it and he has not been able to do so because of the property’s land use designation. Mr. Cougle’s frustration has been compounded because other development has taken place in the Municipality. He feels that he is being frozen out. He insists that he obtained all the studies the Municipality required of him. As I noted above, Mr. Cougle has said that he believes that Mr. Stirling disposed of them. He did not offer an explanation as to why, if that was the case, he did not resubmit them.
60Mr. Cougle’s litigation and threatened litigation has been both expensive and time-consuming for the Municipality. I accept the Municipality’s evidence that each time the Municipality is sued by Mr. Cougle, it has been required to retain counsel and that the Municipality has then incurred substantial legal fees, largely due to the volume of correspondence generated by Mr. Cougle. For each claim, the Municipality has also been required to devote internal staff time to gathering the information and documents required to respond to Mr. Cougle’s allegations. I accept the Municipality’s submission that it has had no option but to respond, in detail, each time, to Mr. Cougle’s disparaging allegations against the Municipality and its officials, employees and former employees.
61I find Mr. Cougle’s conduct outside the court process, and particular his email campaign to elected officials and others, to be part of a pattern of vexatious conduct on his part. Mr. Cougle’s communications with the Law Society of Ontario are also part of the pattern as is his defiance of a court order and repeated requests from counsel not to communicate directly with the Municipality’s employees.
62I do not know whether Mr. Cougle actually believes that his allegations against the Municipality, its officials and its employees and former employees are true, or whether he is repeating them, regardless of any belief in their truth, to harass the Municipality and in the hope that it may one day give him what he wants. Given Mr. Cougle’s impassioned request at the hearing that I not release my decision in this application until after his “trial” on November 24, 2022, I suspect that he had some insight into how his conduct was likely to be viewed by the court. Regardless, the effect of Mr. Cougle’s conduct on the Municipality and the people who have served and now serve it is the same: They have been targeted, they have been publicly disparaged and their time has been wasted. Mr. Cougle, personally and through his company, has abused the court system by using it as a vehicle for harassment and threats.
63For these reasons, I declare both Mr. Cougle and Brylin to be vexatious litigants under s. 140 of the Courts of Justice Act.
64I find that Mr. Cougle’s pattern of conduct to date calls for an order prohibiting Mr. Cougle and Brylin from directly or indirectly instituting any further proceedings in any court, without leave of a judge of the Superior Court of Justice. Similarly, no proceeding either Mr. Cougle or Brylin may have previously instituted shall be continued without leave of a judge of the Superior Court of Justice. I am not satisfied that Mr. Cougle’s vexatious use of the courts will stop without such an order.
65I reviewed and approved the terms of the draft order submitted by the Municipality and signed the order on November 21, 2022.
66If Mr. Cougle believes that he or Brylin has a legitimate claim in the future, they will not be barred from pursuing it. They will, however, be required to seek leave under s. 140(3) of the Courts of Justice Act.
Costs
67In the judgment I signed November 21, 2022, I awarded the Municipality costs of $3,000 all-inclusive. I gave the Municipality 14 days to file written submissions in support of a request for additional costs and Mr. Cougle and Brylin 14 days to respond.
68The Municipality filed a costs outline. Mr. Cougle and Brylin did not file responding submissions.
69The Municipality’s full indemnity fees are $10,632.25, its substantial indemnity fees are $8,505.80 and its partial indemnity fees are $6,379.35. In addition to fees, the Municipality seeks disbursements and HST.
70Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, provides that the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court. Although discretionary, a court must fix costs on a principled basis. (Davies v. Clarington, 2009 ONCA 722, at para. 40.) Rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, sets out the factors the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing, in exercising its discretion under section 131 of the Courts of Justice Act to award costs. The Court of Appeal has made it clear that the fixing of costs does not begin and end with a calculation of hours times rates. It says the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay rather than an amount fixed by the actual costs incurred by the successful litigant. (Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), at para. 26.) In Davies, the Court of Appeal noted that it had repeatedly said that elevated (that is to say, full or substantial indemnity as opposed to partial indemnity) costs are warranted in only two circumstances: (1) where specifically authorized through the operation of an offer to settle under rule 49.10; or (2) where the losing party has engaged in behaviour worthy of sanction. Substantial indemnity costs are only awarded in rare and exceptional cases. (St. Elizabeth Home Society v. Hamilton (City), 2010 ONCA 280, at para. 92.)
71I find that this is one of those rare and exceptional cases where substantial indemnity costs are appropriate. Mr. Cougle had ample time to consider the Municipality’s application and to seek legal counsel. He did, in fact, seek legal counsel. There was evidence that he consulted three different law firms before representing himself at the hearing. Mr. Cougle sought a change of venue for the application, alleging bias on the part of the judges in Perth. When that request was denied, he scheduled a motion in which he sought to raise the issues and allegations he had raised in his previous proceedings. He did the same in his response to the Municipality’s application.
72The legal fees, disbursements and HST incurred by the Municipality to bring this application were incurred because, even when faced with an application to declare him a vexatious litigant, Mr. Cougle could not rein himself in. I consider this to be behaviour worthy of sanction.
73I order Mr. Cougle and Brylin to pay the Municipality substantial indemnity costs in the all-inclusive amount of $10,000, which I consider to be a fair and reasonable amount for them, as the losing parties, to pay in these circumstances. The $10,000 includes and is not in addition to the $3,000 previously awarded.
Justice H. J. Williams
January 18, 2023