Court File and Parties
COURT FILE NO.: CV-22-00090098-0000 DATE: 2023/09/25 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Marie Pyper and Onyx Community Services Applicants – and – Trevor Goble Respondent
COUNSEL: Kyle Shimon and Noel Platte for the Applicants Self-represented Respondent
HEARD: June 9, 2023
Reasons for Decision
RYAN BELL J.
Overview
1Marie Pyper and Onyx Community Services apply under s. 140 of the Courts of Justice Act for a declaration that Trevor Goble is a vexatious litigant and an order that no further proceedings be instituted or continued by Mr. Goble, except with leave of a judge of the Superior Court of Justice. Assuming these orders are made, the applicants also request an order requiring Mr. Goble to provide copies of the decision and the associated order to any administrative or regulatory body, police department, the Crown, or agent of the Crown, prior to or at the time of his commencing any complaint against a third party including, but not limited to, either of the applicants (sometimes referred to as a Chavali order).
2For the following reasons, I declare Mr. Goble to be a vexatious litigant. No further proceedings may be instituted or continued by him in any court, except with leave of a judge of this court. I also make a Chavali order.
Context
3Onyx is a not-for-profit corporation that provides counselling, psychotherapy, addiction support, and community reintegration services to persons in conflict with the law. Ms. Pyper is Onyx’s volunteer executive director.
4The actions commenced by Mr. Goble against Onyx, its employees, volunteers, and lawyers in courts in Ottawa include:
(i) SC-21-159191: A Small Claims Court action was filed on May 12, 2021 against Onyx, its Chief Executive Officer Brian Markle, Ms. Pyper, Onyx’s lawyers, and several of its volunteers and employees. The original plaintiff was Alexander Richards. Mr. Goble was added as a plaintiff later. The action was amended at least four times. The causes of action asserted included intimidation, breach of contract, breach of statute, misrepresentation, civil fraud, civil conspiracy, intentional infliction of mental suffering, interference with economic relations, and defamation. Mr. Goble and Mr. Richards alleged that Mr. Markle and Ms. Pyper had conspired to have Mr. Goble and Mr. Richards arrested for criminal harassment in May 2021. The action was dismissed, on consent, with prejudice on July 16, 2021.
(ii) CV-21-87048: On July 23, 2021, seven days after the dismissal of the Small Claims Court action, Mr. Goble and Mr. Richards commenced an action against Onyx, Ms. Pyper, Mr. Markle, and lawyers who had acted for Onyx. Mr. Goble claimed $25,000 for false statements allegedly made by the defendants in emails and online, and $25,000 for harassment and intimidation, based on alleged false police reports made by Ms. Pyper in May and June 2021. The action repeated many of the same allegations advanced in the Small Claims Court action. Mr. Goble discontinued his claims in the action on September 10, 2021.
(iii) CV-22-88977: This action was filed on April 8, 2022 by Mr. Goble, Mr. Richards, and others against Mr. Markle. Mr. Goble alleged that Mr. Markle had made fraudulent misrepresentations about Mr. Goble’s history and actions, for which Mr. Goble claimed $300,000 in damages.
(iv) CV-22-88993: A third Superior Court action was filed on April 11, 2022, by Mr. Goble, Mr. Richards, and others against Onyx. The plaintiffs sought $10 million in compensatory and punitive damages for breach of confidence, breach of contract, conversion, and civil conspiracy. In the statement of claim, Mr. Goble renewed his allegation that Onyx and its representatives had engaged in a conspiracy to damage his reputation and to make him subject to false arrest. This action was discontinued on April 17, 2022.
(v) CV-22-89010: This action was filed on April 13, 2022 by Mr. Goble, Mr. Richards, and others against Onyx’s legal counsel, James Moak Professional Corporation and Emond Harnden LLP, alleging that the defendants pursued false or frivolous legal claims against them. The plaintiffs claimed $2 million in compensatory damages. The action was discontinued against Emond Harnden LLP on April 17, 2022, and against James Moak Professional Corporation on May 6, 2022.
(vi) CV-22-89357: In the Fresh as Amended Statement of Claim filed in this action against Onyx, Mr. Goble claimed $10,000 in general damages for civil conspiracy and emotional harm, asserting that Onyx was responsible for libelous, slanderous, and defamatory comments made by Ms. Pyper and Mr. Markle. In dismissing the action on January 16, 2023, and awarding costs to Onyx on a substantial indemnity basis, Gomery J. stated “[t]his action bears the hallmarks of a vexatious proceeding.” Goble v. Onyx Community Service, 2023 ONSC 393, at para. 17. A notice of appeal from Gomery J.’s order dismissing the action is included in the materials filed on this application.
5On October 5, 2021, after Mr. Goble discontinued his claim in CV-21-87048 – the first Superior Court action – he signed a release in return for Onyx and Ms. Pyper agreeing not to pursue him for costs. Under the terms of the release, Mr. Goble,
(i) released Onyx, Ms. Pyper, and Onyx’s officers, directors, employees, volunteers, agents, and insurers, “from any and all actions, causes of action, complaints, demands and claims whatsoever” prior to or on October 5, 2021, including all claims for damages arising from alleged tortious conduct;
(ii) agreed that he would commence no action against Onyx “in relation to any matter, known or unknown” to Mr. Goble that occurred or may have occurred prior to October 5, 2021;
(iii) consented to the dismissal of CV-21-87048;
(iv) agreed not to assist any third party in any effort to pursue any legal claim against Onyx for a period of 50 years; and
(v) agreed that he would be liable to Onyx for $10,000 in liquidated damages if he breached any of the terms of the release.
6In October 2022, approximately one month after the commencement of this application, Mr. Goble commenced an application in Pembroke, seeking to have Ms. Pyper declared a vexatious litigant. The Pembroke application, and Mr. Goble’s motion to transfer, consolidate, and convert the action before the court into an action to be heard together with the Pembroke application, were dismissed by Hurley J. on December 1, 2022.
7In addition to the litigation proceedings already described, on June 11, 2021, Mr. Goble filed a complaint with the Law Society of Ontario against James Moak, one of Onyx’s lawyers. Mr. Goble complained about Mr. Moak’s conduct in the context of the Small Claims Court action. The Law Society complaint was dismissed summarily in June 2021.
8Mr. Goble is not licensed to practise law in the province of Ontario. However, it is apparent that Mr. Goble has purported to provide Mr. Richards, Mr. Goble’s co-plaintiff in many of the previously described actions, with legal advice, and drafted pleadings and correspondence. That correspondence, to the applicants and their lawyers, is replete with character attacks, includes threats of criminal complaints, and was often delivered in the middle of the night.
9In an application brought by Onyx, Mr. Richards was declared to be a vexatious litigant on November 3, 2022, by Hackland J.
10Mr. Goble was declared a vexatious litigant in 2010 by the Divisional Court in Goble v. Vranjes, 2010 ONSC 2425, with respect to landlord and tenant disputes. He was convicted of fraud in 2015 under s. 380(1)(a) of the Criminal Code. Mr. Goble was sentenced to jail for 18 months and ordered to pay restitution to Ontario Works and the Kawartha Credit Union.
Legal Principles
11Where a judge of the Superior Court of Justice is satisfied that a person has “persistently and without reasonable grounds” instituted vexatious proceedings in any court, or conducted a proceeding in any court in a vexatious manner, the judge may order that no further proceeding be instituted by the person in any court or a proceeding previously commenced not be continued, except by leave of the judge. CJA, s. 140(1).
12While a person’s access to justice is a fundamental right, the court must be diligent to ensure that its processes are not abused by any particular litigant to the detriment of not only those directly involved in the litigation, but also the system at large. In Foy v. Foy, Blair J.A., writing in dissent, described the rationale of provisions in the Vexatious Proceedings Act, legislation that preceded s. 140 of the CJA. The rationale remains the same:
It is not difficult to perceive the object of the Vexatious Proceedings Act. The protection afforded honest litigants by the exercise of the Court’s inherent jurisdiction to control abuse of process is subject to a serious limitation. It can only be exercised ex post facto. The vexatious litigant has the luxury of being able to initiate proceedings and to force the other party to the expense and inconvenience of responding. The severe financial burden which can be inflicted on a responding party is made obvious by this case. Moreover, the onus of proving that a proceeding is an abuse of process will always be on the responding party. Clearly the purpose of this legislation was to overcome the unfair advantage enjoyed by a vexatious litigant and, in cases where an order is made under the Act, to place upon him the onus of establishing that any proposed proceedings are not an abuse of the process of the Court. Significantly, the vexatious litigant is not deprived of the right to bring proceedings. Rather, the burden is shifted: the vexatious litigant must establish to the Court’s satisfaction that there is a prima facie ground for the proposed proceedings.
13In Currie v. Halton Regional Police Services Board, the Court of Appeal for Ontario endorsed the analysis of Henry J. in Lang Michener et al. and Fabian et al. In Lang Michener, Henry J. identified hallmarks of vexatious proceedings:
(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; and
(g) the respondent’s conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.
Application of the Legal Principles to this Case
14Considering the whole of the matter, I have no hesitation in finding Mr. Goble to be a vexatious litigant.
15In dismissing CV-89357 on the basis that the action was vexatious, Gomery J. observed:
- Prior to this action, Mr. Goble sued Onyx or its representatives five times and complained to the Law Society of Ontario about the conduct of a lawyer who acted for Onyx.
- In this action, Mr. Goble asserts claims and repeats allegations made in past proceedings that were dismissed.
- In the Small Claims Court action, Mr. Goble alleged that Onyx’s representatives conspired to have him falsely arrested. In CV-21-87048, Mr. Goble again claimed damages for false arrest. He also claimed that Ms. Pyper and Mr. Goble had made defamatory statements about him online and in emails and had posted videos they had filmed without his permission. The same or similar allegations were made in two other Superior Court actions begun in April 2022.
- Mr. Goble makes the same allegations about false arrest and defamation in paragraph 3 of the fresh as amended statement of claim, even though the Small Claims Court action was dismissed with prejudice, and even though Mr. Goble executed a release in October 2021.
- Suing a defendant repeatedly for the same claims is vexatious, particularly if those claims have already been disposed of. The defendant is forced to incur the cost and inconvenience of defending the same allegations over and over again. The claims cannot succeed if they were previously dismissed or if the plaintiff has released the defendant.
- After being served with this motion [to dismiss] Mr. Goble and Mr. Ascani [the other plaintiff] amended their statement of claim to add new allegations about defamatory statements and videos posted by Mr. Markle and Ms. Pyper in 2022. This is typical of vexatious proceedings, in that old claims are recycled and supplemented by related claims. Goble, at paras. 18-23.
16Each of these observations applies here. Since June 2021, Mr. Goble has commenced or joined others in commencing at least six proceedings against the applicants, their legal counsel, and Onyx’s volunteers. Mr. Goble complained to the Law Society of Ontario about the conduct of a lawyer who acted for Onyx. As noted, that complaint was summarily dismissed.
17Mr. Goble has asserted claims and repeated allegations made in past proceedings that were dismissed or otherwise disposed of. For example, Mr. Goble made the same allegations of false arrest and defamation even though the Small Claims Court action was dismissed, on consent, with prejudice, and despite his having executed a release in October 2021. The defendants, including the applicants here, have been forced to incur the cost and inconvenience of defending the same allegations over and over again. Mr. Goble amends his pleadings – for example, in the Small Claims Court action and in CV-22-89357 – recycling old claims and supplemented by related claims, and putting the defendants to additional expense.
18Mr. Goble has persisted in his vexatious and abusive litigation conduct. For example, in response to Hurley J.’s dismissal of Mr. Goble’s motion to convert this application to an action, the very next day, Mr. Goble sought to bring a new motion in Ottawa seeking the same relief.
19The costs of $5,000 ordered by Hurley J. remain unpaid. The substantial indemnity costs of $22,346 ordered by Gomery J. remain unpaid.
20Mr. Goble’s correspondence is abusive and threatening. For example, in June 2021, Mr. Goble and Mr. Richards alleged that the applicants’ lawyers engaged in witness intimidation. They threatened to involve the police and demanded to know “Have you got the message yet?” The next month, Mr. Goble and Mr. Richards threatened “Make no mistake, we will be seeking disbarment.” In November 2022, in correspondence to counsel, Mr. Goble baldly asserted that the applicants’ counsel had suborned perjury. Like Gomery J., I find there is ample evidence in the record on this application that “Mr. Goble and Mr. Richards have acted in concert not only in the context of legal proceedings but also in letter and email campaigns designed to threaten and harass Onyx’s representatives and lawyers.” Goble, at para. 25.
21Looking at the whole history of the matter, I find that Mr. Goble is a vexatious litigant. To ensure that the court’s processes are not abused by Mr. Goble to the detriment of not only those involved in the litigation but also the system at large, Mr. Goble will not be permitted to institute or continue any court proceedings except with leave of a judge of this court.
A Chavali Order Should Be Granted
22In my view, this is also an appropriate case for a Chavali order.
23While the court does not have jurisdiction to make an order under s. 140 of the CJA to preclude proceedings before bodies that are not courts, the court can provide some protection for the targets of the vexatious litigant’s conduct. In imposing a Chavali-type order on a vexatious litigant in People’s Trust Company v. Atas, 2018 ONSC 58, Corbett J. described the purpose of such an order at paras. 307-8:
Section 140 does not authorize the court to issue an order precluding a person from commencing or continuing administrative proceedings or complaints. Administrative bodies control their own process, and most have some mechanism to protect against abuse of their process. I agree with Gray J. in Bank of Montreal v. Cudini that the court does not have jurisdiction to make an order under s. 140 to preclude proceedings before bodies that are not “courts”.
This court can, however, provide some protection for the targets of Ms Atas’ conduct. I direct that Ms Atas provide a copy of this decision and the formal order issued as a result of this decision, to any person or body with whom she initiates or continues a complaint of any kind (including, without limitation, any court, administrative body, regulatory body, the police and the Crown. The persons and organizations receiving the complaints will then know of this court’s decision; it will be for them to control their own processes, but with the knowledge of this court’s findings respecting Ms Atas’ conduct as a litigant.
24In upholding Corbett J.’s order, the Court of Appeal observed that,
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. 2019 ONCA 359, leave to appeal refused, 2020 SCCL 29393.
25I note that Hackland J. made a Chavali order with respect to Mr. Richards.
26Given Mr. Goble’s complaints to the Law Society of Ontario, his continued threats of police involvement and criminal complaints, and having regard to the history of this matter, a Chavali order is warranted. It will be for administrative and regulatory bodies receiving complaints from Mr. Goble to control their own processes, but they will do so with the knowledge of this court’s findings respecting Mr. Goble’s conduct as a litigant.
Disposition
27The application is granted. I declare Mr. Goble to be a vexatious litigant. I make an order that no further proceeding be instituted by Mr. Goble in any court and any proceeding previously instituted by Mr. Goble in any court not be continued except by leave of a judge of the Superior Court of Justice. I further order that Mr. Goble is to provide a copy of this decision and the formal order issued as a result of this decision to any administrative or regulatory body, police department, the Crown, or agent of the Crown, prior to or at the time of commencing any complaint of any kind, including in respect of the applicants, their lawyers, and any person Mr. Goble knows is an employee, volunteer, member of a board of directors or an agent of Onyx Community Services.
28The applicants seek their costs of this application on a substantial indemnity basis in the amount of $49,558.41. Although substantial indemnity costs are the exception, they are warranted here. In his various actions, Mr. Goble has alleged that Onyx and its representatives engaged in intentionally wrongful conduct, including fraud, civil conspiracy, intimidation, harassment, and intentional infliction of emotional distress. Mr. Goble has accused Onyx’s lawyers of suborning perjury. He has persisted in making baseless and harmful allegations. At the hearing, Mr. Goble repeatedly asserted that Mr. Markle, and not Ms. Pyper, ought to have been an applicant, thus prolonging the hearing. Mr. Goble refuses to accept that Gomery J. found CV-22-89357 to be frivolous.
29The costs claimed by the applicants are reasonable. The application record consisted of four volumes of materials, totalling approximately 1500 pages. Mr. Goble’s two-volume record totalled approximately 500 pages. The hourly rates charged by Onyx’s lawyers are reasonable. Mr. Goble’s assertion that the number of hours spent by Onyx’s lawyers is excessive because “the amount is premised on them doing nothing wrong” and the applicants are not “entirely innocent” is without merit.
30Costs of the application in the amount of $49,558.41 are payable by Mr. Goble to the applicants.
31The applicants are directed to submit a draft order for my signature. Mr. Goble’s approval as to form and content of the draft order is hereby dispensed with.
Justice R. Ryan Bell Released: September 25, 2023