Court of Appeal for Ontario

Citation: Bishop v. Bishop, 2011 ONCA 211 Date: 2011-03-17 Docket: C52841

Before: Rosenberg, Moldaver and Feldman JJ.A.

Between:

Christine Catherine Bishop and Anne Alma McGourty Applicants (Respondents)

and

James Michael Bishop Respondent (Appellant)

Counsel: James Bishop, in person Annette Casullo, for the respondents

Heard: March 15, 2011

On appeal from the order of Justice R. Dan Cornell of the Superior Court of Justice, dated October 5, 2010.

ENDORSEMENT

[1] The appellant appeals from the order of Cornell J. of the Superior Court of Justice dated October 5, 2010 declaring him to be a vexatious litigant pursuant to s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43, and (1) prohibiting him from continuing any proceeding, including any appeal, in any court governed by the Courts of Justice Act without first obtaining leave of a judge of the Superior Court of Justice; and (2) prohibiting him from commencing any proceedings or appeal in any court governed by the Courts of Justice Act without first obtaining leave of a judge of the Superior Court of Justice.

[2] The appellant submits that the motion judge erred in making that order, essentially for two reasons.

[3] First, the appellant submits that the court proceedings instituted by him were few in number and they were not vexatious; rather, they were brought in good faith on the basis of his sincerely held belief that his sisters (the respondents) had used a power of attorney to misappropriate large sums of money from their mother before she died. He therefore takes issue with the motion judge’s finding that the proceedings instituted by him were vexatious.

[4] Second, the appellant submits that in finding him to be a vexatious litigant, the motion judge erroneously took into account numerous non-judicial proceedings, including complaints to various professional bodies against individuals who had either opposed him in his attempt to expose his sisters’ alleged wrongdoings or who had allegedly failed to provide him with competent advice and service.

[5] We would not give effect to either of these grounds of appeal.

[6] The motion judge provided comprehensive reasons for concluding that the appellant met the criteria identified in Re Lang Michener et al. and Fabian et al. (1987), 1987 172 (ON SC), 59 O.R. (2d) 353 (H.C.), to be declared a vexatious litigant under s. 140(1) of the Courts of Justice Act. At paras. 15 and 16 of his reasons, the motion judge summarized his findings in this regard:

It is readily apparent that Mr. Bishop has satisfied most, if not all, of the criteria to be applied in determining if someone is a vexatious litigant. He has brought one or more actions to determine an issue that has already been judicially determined. In each case, there was no reasonable basis for the position that was being advanced by him. His scorched earth approach to this matter constitutes harassment and oppression of not just his siblings, but of anyone else who has been associated with this matter. Despite a thorough review by various independent agencies and the courts, it is now clear that Mr. Bishop refuses to accept that his concerns are unfounded. Mr. Bishop has continued with a multiplicity of proceedings in an effort to re-litigate the matter. In addition, Mr. Bishop persists in taking unsuccessful appeals from judicial decisions.

Mr. Bishop has had his day, indeed more than one day, in court. He refuses to accept the independent and impartial decisions which have been rendered and doubtless would continue on this unreasonable course of conduct for, to use his own words, “another twelve years on this one if I have to ...”.

[7] In our view, the motion judge was justified in concluding that the appellant is fixed in his belief that the respondents misappropriated funds from his late mother and that nothing short of a vexatious litigant order will prevent him from continuing his crusade against them in the courts indefinitely. Contrary to the submission of the appellant, the record amply supports those findings.

[8] As for the second ground of appeal – that the motion judge improperly took non-judicial proceedings into account – we agree with the principle enunciated by Dawson J. in Canada Post Corp. v. Varma, 2000 15754 (FC), [2000] F.C.J. No. 851 at para. 23:

A respondent’s behaviour both in and out of the court has been held to be relevant. In Canada v. Warriner, (1993), 70 F.T.R. 8 (T.D.), McGillis J. noted that frivolous and unsubstantiated allegations of impropriety had been levelled against lawyers who had acted for or against the respondent. In Vojic, supra, McGillis J. took into account the fact that the respondent had failed to appear on several occasions and had shown disregard for the court. In Yorke v. Canada, (1995), 102 F.T.R. 189 (T.D.), Rouleau J. considered a number of factors, including that the respondent’s proceedings in the Federal Court were replete with extreme and unsubstantiated allegations.

[9] We would simply add to that statement by noting that in our view, the institution of non-judicial proceedings can, depending on the circumstances, constitute evidence from which a court may infer that court proceedings commenced by the litigant are not bona fide but the product of someone who is unreasonably obsessed with a cause and likely to pursue vexatious court proceedings on an indefinite basis unless stopped. In this case, we are satisfied that the motion judge was entitled to look to the extra-judicial proceedings commenced by the appellant in assessing the bona fides of the legal proceedings he had commenced and was continuing to pursue.

[10] For these reasons, we would dismiss the appeal and uphold the motion judge’s order.

[11] The appellant also submits that the motion judge erred in fixing costs against him in the amount of $28,146.57. We see no basis for granting leave in this case. The appellant has not identified any error in principle and the costs award is not unreasonable. Accordingly, leave to appeal costs is denied.

[12] With respect to the appeal, we are satisfied that the respondents should have their costs on a partial indemnity basis in the amount of $10,000, inclusive of disbursements and applicable taxes. Rule 49 relating to the cost consequences of offers to settle does not apply to appeals.

Signed: “M. Rosenberg J.A.”

“M. J. Moldaver J.A.”

“K. Feldman J.A.”