Court File and Parties

Court of Appeal for Ontario Date: 2023-06-26 Docket: COA-22-CV-0032 & C70680

Before: Miller, Paciocco and Coroza JJ.A.

Between: David Williams as General Executor of and for the David Williams Living Estate Trust Plaintiff (Appellant)

And: John Tuck, Allison Kreuger, Town of Parry Sound, the Corporation of the Town of Parry Sound, Jamie McGarvey, Bonnie Keith, Brad Horne, Doug McCann, Paul Borneman, Roger Burden and Vanessa Backman Defendants (Respondents)

Counsel: David Williams, acting in person No one appearing for the respondents

Heard: June 12, 2023

On appeal from the order of Justice John R. McCarthy of the Superior Court of Justice, dated July 29, 2022, with reasons reported at 2022 ONSC 4464.

Reasons for Decision

[1] The appellant, David Williams, appeals the order of the application judge dated July 29, 2022, in which the application judge invoked both inherent jurisdiction and the process under s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) for controlling vexatious litigation. Following the schema set out in s. 140, the application judge ordered that the appellant may not institute any proceedings in any court except with leave of a judge of the Superior Court of Justice, and that all proceedings previously instituted by him are immediately stayed.

[2] The appellant – styled variously as a trustee or executor of a “living estate trust” – commenced three actions in succession against more or less the same group of defendants. Whatever the origins of the appellant’s grievances, the three actions were obviously frivolous, vexatious, and an abuse of process and each in turn were dismissed as such under r. 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[3] At the time he disposed of the last of these actions under r. 2.1.01, the motion judge instituted a process to determine whether the appellant should be declared a vexatious litigant and restricted from commencing any new proceedings – or taking any further step in any existing proceedings – without leave of the Superior Court of Justice. That process, which the application judge explained was undertaken pursuant to s. 140 of the CJA and the inherent jurisdiction of the Superior Court, involved providing notice to the appellant of an oral hearing, and an opportunity to make oral and written submissions.

[4] The appellant availed himself of the opportunity to make written submissions and demanded that the application judge recuse himself on the basis of bias. The appellant did not appear at the oral hearing due to his mistaken belief that the hearing would be stayed after he commenced an appeal from the application judge’s decision to institute the vexatious litigant process.

[5] The application judge declined to recuse himself and made the finding that the appellant is a vexatious litigant, and that without the vexatious litigant order the appellant would simply continue filing the same proceeding over and over in different registries.

[6] Although the appellant advances several arguments on appeal, his central arguments are: (1) that the application judge had a personal interest in the appellant’s litigation and ought to have recused himself; and (2) that the application judge did not have jurisdiction to make the vexatious litigant order.

[7] First, there is no merit whatsoever to the allegation that the application judge had any interest in the litigation. Nor was there any credible evidence in the record to support the allegation of a reasonable apprehension of bias against the appellant on the part of anyone in the court system, least of all the application judge. The appellant points to an anonymous letter he received, which claimed that a judicial officer in Alberta was interfering to ensure the appellant would not receive justice. The allegation is fantastical and did not provide a basis for the request that the application judge recuse himself.

[8] However, we agree that the application judge lacked the jurisdiction to make the vexatious litigant order, and that order must be vacated.

[9] Before we explain why, it is important to note that there was ample and obvious reason why the application judge would want to make that order. The appellant, notwithstanding his civility and polite bearing before this court, has engaged in a continuing course of instituting proceedings that have no legal foundation. These proceedings are an abuse of legal process. Having to respond to such proceedings imposes an unwarranted cost not only on litigants but on an overburdened court system.

[10] Each time one claim was dismissed, another would soon be instituted in its place. That pleading would then have to be flagged, brought to the application judge’s attention, and dealt with separately. The subsequent dismissal would provoke a response from the appellant who would bring meritless complaints about the registry staff and, ultimately, the absurd and grossly disrespectful allegation that the application judge and a member of the registry staff were brothers and engaged in a form of conspiracy against the appellant. Both the judge and the registry staff were required to devote time to managing a chronic abuser of its resources – time that could have been put to productive use. Litigants who clog the system with their abuse of civil process, to state the obvious, deny others timely access to justice.

[11] The appellant appears to think the problem is a technical one – simply a matter of getting the style of cause right so that the statement of claim correctly describes his office in relation to the so-called “living estate trust”. He protests that each of the several iterations of his statement of claim were simply good faith attempts to cure the defects in the earlier iterations, implementing advice given to him by registry staff. He does not understand, or will not accept, that his pleadings (seeking damages of $10 million) bear all of the hallmarks of frivolous and vexatious process and are not capable of amendment. Continued efforts to amend and refile will only result in further r. 2.1.01 dismissals.

[12] With the prospect of continued, serial, procedural abuse by the appellant, the application judge initiated the process which led to the order declaring the appellant to be a vexatious litigant.

[13] Such an order would appear to be amply justified. The problem, however, is with the application judge’s jurisdiction to make the order in these circumstances.

[14] Any interested person, pursuant to s. 140(1) of the CJA, can bring an application for an order that no further proceeding be instituted by a person without leave of a judge of the Superior Court: Balanyk v. Dutton Brock LLP, 2014 ONCA 122. As this court has held, the process is not optional. It must be by way of application, meaning an originating process as defined in the statute: Lukezic v. Royal Bank of Canada, 2012 ONCA 350, 350 D.L.R. (4th) 111. This provides the subject of the proceeding with procedural fairness: the subject is provided with written notice that the order will be sought, the facts thought to justify the order, an opportunity to make written submissions, notice of an oral hearing, and an opportunity to make oral submissions at the hearing.

[15] In this case, there was no such application, although the defendants could have brought one. The application judge approximated the process under s. 140, providing the appellant with all of the procedural protections he would have received had the matter proceeded by a third-party application. The application judge referred to both s. 140 and the court’s inherent jurisdiction for the authority to do so.

[16] The problem is this. There is longstanding, binding authority from this court that there is no inherent, common law authority to make a vexatious litigant order, and s. 140 does not authorize the judge-initiated process employed here: see Foy v. Foy (No. 2) (1979), 26 O.R. (2d) 220 (C.A.), leave to appeal refused (1979), 102 D.L.R. (3d) 342n; Kallaba v. Bylykbashi (2006), 207 O.A.C. 60, leave to appeal refused, [2006] S.C.C.A. No. 144; Lukezic. This can be contrasted with r. 2.1.01, which clearly provides the court with the authority to stay or dismiss a frivolous or vexatious proceeding “on its own initiative”.

[17] Section 140(5), which specifically provides that nothing in s. 140 “limits the authority of a court to stay or dismiss a proceeding as an abuse of process or on any other ground” does not assist. The order appealed from is not from the stay or dismissal of a proceeding. The order under appeal is both a declaration of a status – “vexatious litigant” – and a restriction on that litigant’s civil right of access to the courts for all proceedings. It is “aimed at the litigant and not at the litigation”: Kallaba, at para. 122 (per Lang J.A., dissenting, but not on this point). Nor is this a question of the scope of the court’s broad jurisdiction to make appropriate orders in the context of a proper s. 140 application, as discussed in Peoples Trust Company v. Atas, 2019 ONCA 359, leave to appeal refused, [2019] S.C.C.A. No. 427.

[18] Where no third party steps up to bring the requisite application, the actions can only be dealt with on a case-by-case basis under r. 2.1.01. There may well be good reason for this given the extraordinarily broad nature of the s. 140 remedy: see the discussion of the competing considerations at play in Gerrard J. Kennedy, “Rule 2.1 of Ontario’s Rules of Civil Procedure: Responding to Vexatious Litigation While Advancing Access to Justice?” (2018) 35 Windsor YB Access Just 243, at p. 248. In any event, there is currently no means for a judge to combine a r. 2.1.01 order with a vexatious litigant order on the judge’s own motion and have that order filed in every registry in Ontario. As Lang J.A. noted in Kallaba, at para. 116 – nearly two decades ago – a vexatious litigant order is a creature of statute. Any gaps in the legislation are for the legislature to fill.

[19] It is with reluctance that we allow the appeal and vacate the vexatious litigant order. For greater clarity, nothing in these reasons disturbs the orders made by the application judge under rule 2.1.01 dismissing the underlying action. Nor should anything in these reasons be read as an endorsement of the appellant’s conduct of this litigation, or an impediment to any future application under s. 140 of the CJA.

Disposition

[20] The appeal is allowed and the order pursuant to s. 140 of the CJA is quashed. For greater certainty, the order dismissing the action pursuant to r. 2.1.01 is undisturbed.

“B.W. Miller J.A.” “David M. Paciocco J.A.” “S. Coroza J.A.”