COURT OF APPEAL FOR ONTARIO

2016 ONCA 806

DATE: 20161101

DOCKET: C62189 & M46549

Laskin, Sharpe and Miller JJ.A.

BETWEEN

Fraser Simpson

Appellant/Moving Party

and

The Chartered Professional Accountants of Ontario

Respondent/Responding Party

Fraser Simpson, in person

Paul Farley and Diana M. Soos, for the respondent

Heard: In writing

Disposition pursuant to Rule 2.1

ENDORSEMENT

[1] Since 2009, the appellant, Fraser Simpson, has been involved in legal proceedings involving the respondent Institute of Chartered Accountants of Ontario (“ICAO”), operating as the Chartered Professional Accountants of Ontario.

[2] By letter, the ICAO asked this court to dismiss Mr. Simpson’s appeal and motion pursuant to r. 2.1.01, r. 2.1.02 and/or r. 2.1.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194:

2.1.01 (1) The court may, on its own initiative, stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.

2.1.02 (1) The court may, on its own initiative, stay or dismiss a motion if the motion appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.

2.1.03 (1) If the court determines that a person who is subject to an order under subsection 140 (1) of the Courts of Justice Act has instituted or continued a proceeding without the order having been rescinded or leave granted for the proceeding to be instituted or continued, the court shall make an order staying or dismissing the proceeding. [Emphasis added.]

[3] In response to the ICAO’s letter, the Registrar issued a notice under r. 2.1, advising Mr. Simpson that his proceeding or motion may be stayed or dismissed as they appear to be frivolous, vexatious or otherwise an abuse of the process of the court.

[4] Mr. Simpson filed written submissions in response to the notice. These were provided to the ICAO, which in turn made written submissions as to why Mr. Simpson’s appeal and motion should be dismissed.

[5] For the following reasons, we conclude that Mr. Simpson’s appeal and motion should be dismissed pursuant to r. 2.1.01 and r. 2.1.02.

(1) Nature of Mr. Simpson’s Appeal and Motion

(a) Appeal

[6] In his notice of appeal, Mr. Simpson seeks to appeal from what he describes as an “order” of Corbett J. dated May 18, 2016. There is, in fact, no such order – the so-called “order” is a letter in response to Mr. Simpson’s request for leave to appeal a decision of the ICAO, which denied Mr. Simpson’s request for reinstatement to the ICAO. The basis for the request was an order by Corbett J. dated May 6, 2014, which provides in part:

THIS COURT ORDERS THAT paragraph 2 of the February 28th 2014 Order is varied to add the following term:

No motion for leave shall be sought without first obtaining prior leave to bring that motion by application in writing to D.L.Corbett J., without notice to any responding party. This written without notice application shall be supported by an affidavit of no more than six pages in length setting out the reason(s) why Mr. Simpson believes he should be permitted to seek leave to bring a proceeding or take a step in a proceeding against any persons entitled to the benefit of this order. [Emphasis added.]

[7] The February 28, 2014 order in question provides:

THIS COURT ORDERS THAT the Plaintiff not commence or take any steps in any proceeding as against the ICAO or any of its agents … without prior leave from a Justice of this Court….

[8] In his letter of May 18, 2016, Corbett J. denied Mr. Simpson’s request, without prejudice to a further request with a supporting affidavit, because he had failed to give any reason why he should be granted permission to bring the appeal in light of his history of bringing meritless proceedings against the ICAO and his failure to pay substantial costs awards.

[9] In his notice of appeal, Mr. Simpson also requests that an order be granted setting aside Corbett J.’s order dated February 28, 2014, which is referenced above. That order was the subject of an earlier appeal to this court. Corbett J. granted Mr. Simpson leave to appeal the February 28, 2014 order but his appeal was dismissed on December 29, 2014 by the Registrar for failure to satisfy an order for security for costs.

(b) Motion

[10] By notice of motion, Mr. Simpson sought a stay of enforcement of Corbett J.’s May 18, 2016 “order” as well as other relief. The motion was to be heard on June 8, 2016 but did not proceed pending the outcome of the r. 2.1 procedure.

(2) Prior proceedings

[11] To explain the appeal and motion the ICAO seeks to have dismissed, it is necessary to provide a brief summary of the protracted proceedings that have led to the ICAO’s request for dismissal.

[12] These proceedings all flow from the suspension of Mr. Simpson’s ICAO membership because he failed to pay his annual membership fee. He applied for readmission in December 2007. The application form indicated that the readmission fee of $4,202 was paid by a MasterCard in the name of Marshall Sone. Mr. Simpson was readmitted to membership on March 24, 2008. Several days later, the ICAO received notice that the credit card payment had been reversed as Mr. Sone claimed it was unauthorized.

[13] Since the 2008 credit card transaction, there have been various disciplinary and civil proceedings involving Mr. Simpson and the ICAO. He also brought civil proceedings against Mr. Sone and his wife. The matter of the $4,202 credit card charge comes up time and time again in the various proceedings.

(a) ICAO Professional Misconduct

[14] In 2009, Mr. Simpson was found guilty of three charges of professional misconduct, reprimanded, fined $5,000, expelled from ICAO membership, and ordered to pay costs. Mr. Simpson appealed the 2009 ICAO decision to the Appeal Committee of the ICAO but failed to order the transcript and so his appeal was dismissed in July 2010.

(b) Small Claims Court Actions

[15] In 2008, Mr. Simpson sued Mr. Sone and his wife, Jacqueline Saber, in Small Claims Court regarding the credit card reversal and obtained judgment for $1,000. On appeal to the Divisional Court, the judgment against Jaqueline Saber was set aside but the judgment against Mr. Sone was affirmed.

[16] In a subsequent Small Claims Court proceeding commenced in 2010, Mr. Simpson sued a number of defendants, including Mr. Sone, Ms. Saber and the ICAO. This action also stemmed from the March 2008 credit card transaction. The action against the ICAO was dismissed. The trial judge found that the ICAO was “correct in suspending him when the method of payment turned out to be disallowed, through no fault of theirs” and that Mr. Simpson had no legal cause of action against the ICAO.

(c) Superior Court of Justice Action

[17] In April 2013, Mr. Simpson commenced a proceeding in the Superior Court of Justice against a number of parties including the ICAO, various ICAO employees and Mr. Sone and Ms. Saber. He claimed, among other things, “$4,202 damages for monies paid for professional fees”.

[18] In December 2013, Corbett J. dismissed the action against a number of the ICAO-related defendants but granted Mr. Simpson leave to amend his statement of claim.

[19] In February 2014, the ICAO brought a motion to strike the amended statement of claim and to dismiss the proceeding on the basis that it was frivolous and vexatious.

[20] On February 28, 2014, Corbett J. dismissed the action against the ICAO and ordered that Mr. Simpson “not commence or take any steps in any proceeding as against the ICAO or any of its agents …. without prior leave from a Justice of this Court”. The order granted Mr. Simpson leave to appeal the order.

(d) Motion to set aside the February 28, 2014 order

[21] In April 2014, Mr. Simpson brought a motion to set aside or vary the February 28, 2014 order. Morgan J. dismissed the motion and commented that while it was clear Mr. Simpson was aggrieved that was “not a reason to use the court system improperly as a means of harassing the opposite side”: 2014 ONSC 2558, at para. 27. He quoted, at para. 26, from the following email sent by Mr. Simpson to the ICAO and its counsel:

Subject: Motion scheduling court

I love spending your money!

Have a good weekend, I look forward to insulting you all on the 23rd.

(e) Motion for summary judgment

[22] In the meantime, on March 24, 2014, Corbett J. granted Ms. Saber’s motion for summary judgment and, in subsequent reasons dated May 6, 2014, granted Mr. Sone’s motion for summary judgment: 2014 ONSC 2861. In the course of his reasons, Corbett J. commented on Mr. Simpson’s behaviour at paras. 8 and 9:

Mr Simpson is clearly using the court system as a way to inflict damage on people with whom he is upset.

It is clear … that Mr Simpson continues to put ICAO to expense by bringing motions for leave to bring proceedings or steps in proceedings, thereby putting ICAO to the cost of counsel to attend for scheduling of a leave motion, and attendance at the leave motion itself. This must stop.

[23] Accordingly, Corbett J.’s May 6, 2014 order varied his February 28, 2014 to include the following term:

No motion for leave shall be sought without first obtaining prior leave to bring that motion by application in writing to D.L. Corbett J., without notice to any responding party. This written without notice application shall be supported by an affidavit of no more than six pages in length setting out the reason(s) why Mr. Simpson believes he should be permitted to seek leave to bring a proceeding or take a step in a proceeding against any persons entitled to the benefit of this order.

(f) Appeal to the Court of Appeal

[24] Mr. Simpson appealed the February 28, 2014 order to the Court of Appeal. By order dated November 6, 2014, the ICAO obtained an order for security for costs against Mr. Simpson in the amount of $50,000. In ordering security for costs, Epstein J.A. noted that Mr. Simpson had failed to pay costs awards against him in favour of the ICAO, which exceeded $30,000. She also noted “the unchallenged evidence in the record in which [Mr. Simpson] expresses his bad faith – his clear intention to harass the Institute and waste the Institute’s time and money.” As to the merits of the appeal, she had “grave reservations” and was of the view that it had “little chance of success”.

[25] Mr. Simpson failed to pay $50,000 into court by the stipulated date and for that reason, the Registrar dismissed his appeal on December 29, 2014.

(g) ICAO Proceeding for Reinstatement

[26] In 2015, Mr. Simpson brought a motion before the ICAO to have the 2009 disciplinary decision reconsidered and his membership reinstated. Mr. Simpson argued that there was fresh evidence relating to the payment of the $4,202.

[27] In January 2016, the ICAO dismissed his motion for reconsideration, which the Discipline Committee found to be “entirely without merit”.

(i) Appeal to the Divisional Court

[28] Instead of appealing the decision to the Appeal Committee of the ICAO, Mr. Simpson issued a notice of appeal from the ICAO decision to the Divisional Court. One of his grounds of appeal was that the Discipline Committed erred in not finding that his professional fees were paid.

[29] Despite warnings from the ICAO that the appeal route lay to the Appeal Committee, he brought a motion to the Divisional Court in April 2016. The motion came before Mullins J. on April 21, 2016 but she adjourned the matter to Corbett J., as Mr. Simpson had not sought leave to bring the motion as required by Corbett J.’s order.

[30] Mr. Simpson then wrote to Corbett J. seeking leave to appeal the 2016 ICAO decision. By letter dated May 18, 2016, Corbett J. refused the request, but invited Mr. Simpson to resubmit his request with the necessary supporting affidavit material. Instead of doing so, Mr. Simpson commenced the appeal that is now before this court whereby he challenges the “order” of Corbett J. dated May 18, 2016 and seeks to set aside the February 28, 2014 order.

[31] Mr. Simpson raises two grounds of appeal in his notice of appeal.

[32] First, he contends that Corbett J. “had no jurisdiction to make the vexatious litigant order” because the relief was sought by motion rather than by way of application.He says the motion judge also erred in granting the order on his own initiative without giving Mr. Simpson a chance to oppose the relief.

[33] Second, he submits Corbett J. erred in “declaring the credit card payment as invalid, and thus denying my request to procure the sales draft from the [ICAO]”.

[34] Related to the credit card payment, he requests an order compelling the ICAO to “produce the originating CREDIT CARD SALES DRAFT to the within action, including all related correspondence and accounting documentation.”

[35] Mr. Simpson further requests leave to proceed with an appeal to the Divisional Court.

Analysis

[36] In our view, Mr. Simpson’s appeal and motion are frivolous and vexatious and should therefore be dismissed pursuant to r. 2.1.01 and r. 2.1.02.

[37] It is clear from the history of these proceedings that Mr. Simpson has repeatedly sought to re-litigate issues that have been previously decided. In particular, he already appealed the February 28, 2014 order. That appeal was dismissed when Mr. Simpson failed to satisfy an order that he post security for costs. To permit him to continue with this appeal would be to permit him to evade or escape the consequences of failing to post security for costs and this court’s order dismissing his appeal.

[38] The issue of the disputed credit card payment and reversal has already been the subject of two Small Claims Court actions and an action in the Superior Court of Justice. The history of these proceedings amply supports the conclusion reached by Corbett and Morgan JJ. and Epstein J.A. that Mr. Simpson has abused the legal process by bringing forward claims that have already been dismissed.

[39] Within the past six months, Mr. Simpson has commenced further proceedings against the ICAO in both the Divisional Court and the Court of Appeal that involve issues that have already been determined and that are not brought in the proper forum.

[40] Furthermore, we note that Mr. Simpson has yet to pay the ICAO any of the numerous outstanding costs orders issued against him.

[41] Everyone is entitled to their day in court but once they have had that day, they cannot be permitted to subject other parties to the cost of further proceedings attempting to re-litigate issues that have already been decided.

Directions regarding Procedure

[42] In our view, it is appropriate to make certain observations and directions as to how requests made to this court for dismissal pursuant to r. 2.1 and other r. 2.1 matters initiated by this court should be dealt with.

[43] Rule 2.1 is meant to provide a streamlined procedure for disposing of proceedings and motions that on their face are frivolous, vexatious or otherwise an abuse of process. However, the rule is not intended or designed to supplant the established procedural mechanism of bringing a motion to quash an appeal for want of jurisdiction or for want of merit. Indeed, a party considering making a r. 2.1 request is well advised to consider if the matter would be more effectively addressed by the court by bringing a motion to quash and by filing the materials required in support of such a motion, rather than by using the procedures outlined in r. 2.1. The court will take into account whether a motion to quash is the more appropriate procedural vehicle in deciding whether to direct that a notice be sent under r. 2.1.01(3)1.

[44] If a party chooses to bring a r. 2.1 request, it must be recognized that in this court, only a panel of three judges can dismiss an appeal and certain types of motions, such as a motion to review an order of a single judge and a motion under r. 59.06(2) of the Rules of Civil Procedure to set aside or vary an order of the court. This court must have the authority to ensure that the material supporting a r. 2.1 request is properly presented to the panel. To provide guidance for the future, we consider it appropriate to outline the procedure to be followed when invoking r. 2.1.

[45] Where a party makes a request pursuant to r. 2.1.01(6) for an order under r. 2.1.01(1) in the Court of Appeal, the requesting party should send a written request, copied to the appellant or moving party, that clearly outlines the nature of the appeal or motion and the grounds upon which the requesting party relies to have the appeal or motion dismissed. The requesting party should also provide to the court and to the appellant or moving party a bound volume containing any relevant previous issued and entered orders, including any vexatious litigant orders, and the reasons for such orders. These documents are needed to permit an assessment of whether a notice should be given under r. 2.1.01(3)1.

[46] Where the Registrar gives notice under r. 2.1.01(3)1 to an appellant or moving party, that party may file a written submission pursuant to r. 2.1.01(3)2 responding to the notice within 15 days after receiving the notice. The written submission should not exceed 10 pages. If the party is facing possible dismissal of an appeal or a motion that must be heard by a panel of three judges, the party should file three copies of the written submission with the court.

[47] Similarly, if a party files a responding submission in accordance with r. 2.1.01(3)5, the submission should not exceed 10 pages. For matters that must be heard by a panel, the party should file three copies of its responding submission and a bound volume of any relevant background documents, such as prior issued and entered orders and the reasons for such orders, as well as relevant pleadings or other related documents. A copy of the submission and any related documents must also be provided to the appellant or moving party.

[48] These comments are not intended to be taken as being directed at counsel for the respondent in this case who did not have the benefit of these directions.

Disposition

[49] Accordingly, we dismiss Mr. Simpson’s appeal and motion as frivolous and vexatious, pursuant to r. 2.1.01 and r. 2.1.02. Mr. Simpson is prohibited from making any further motions related to the appeal or motion without leave of a judge of this court.

[50] The court further dispenses with the need for the ICAO to seek Mr. Simpson’s approval as to the form and content of this court’s order.

[51] In the circumstances, we decline to award any costs.

“John Laskin J.A.”

“Robert J. Sharpe J.A.”

“B.W. Miller J.A.”