Court File and Parties

Court of Appeal for Ontario Date: 2024-11-19 Docket: COA-23-CV-0199

Before: Hourigan, Madsen and Pomerance JJ.A.

Between:

Tanya Rebello Appellant/Plaintiff

And:

His Majesty the King in right of Ontario as represented by the Ministry of Transportation of Ontario, the Ministry of Government and Consumer Services of Ontario and ServiceOntario Respondent/Defendant

Counsel: Tanya Rebello, acting in person Adam Mortimer and Bhavini Lekhi, for the respondent

Heard: October 25, 2024

On appeal from the order of Justice Edward M. Morgan of the Superior Court of Justice, dated January 30, 2023.

Reasons for Decision

[1] The appellant appeals the order of the trial judge dismissing her claims arising from a mistakenly transferred Vehicle Identification Number (“VIN”) in 2018, and a medical drivers’ license suspension in 2016. She also seeks leave to appeal the related costs order. The trial judge dismissed the appellant’s claims on the basis that they are statute-barred, and ordered costs against her on a substantial indemnity basis in the amount of $100,000.

A. Background

[2] On April 16, 2018, shortly before the appellant’s license plate was due for renewal, ServiceOntario mistakenly transferred the VIN associated with her vehicle to an unrelated third party, and invalidated the license plate. The mistaken transfer was reported to ServiceOntario on May 16, 2018. Although ServiceOntario rectified the VIN error less than one month later, on June 1, 2018, it was unable to renew the license plate due to unpaid parking tickets and fines registered against the vehicle. In response, the appellant claimed that she had no unpaid parking tickets and owed no fines.

[3] The appellant issued a statement of claim on June 18, 2018, suing the Ontario Crown in respect of the erroneous VIN transfer and for failure to renew her license plate. The claim was dismissed by Dunphy J. on March 29, 2019, for failure to comply with the 60-day notice provision then in effect under the repealed Proceedings Against the Crown Act, R.S.O. 1990, c. P. 27. Dunphy J. indicated that the appellant was at liberty to issue a new statement of claim complying with the statutory provisions, as long as the limitation period had not expired.

[4] On December 31, 2021, nineteen months after Dunphy J.’s order and more than three and a half years after the VIN issue arose, the appellant issued a new statement of claim in relation to the mistaken VIN transfer and denial of the license renewal. The current claim also includes an additional allegation of negligence in relation to a medical drivers’ license suspension which took place on May 16, 2016. The amended statement of claim sets out a vast array of claims, including damages in negligence, breach of contract, intrusion upon seclusion, breach of confidence, breach of the appellant’s rights under s. 7 of the Charter of Rights and Freedoms, breach of privacy, and damages for intentional infliction of emotional and mental distress and suffering. The appellant sought special damages in the amount of five million dollars plus an additional ten million dollars in punitive and aggravated damages.

B. The Reasons of the Trial Judge

[5] In careful reasons, following a three-day summary trial, the trial judge held that the appellant’s claims were statute-barred. He found that the appellant was clearly aware of her claim in relation to the VIN and license renewal issue when she issued her original statement of claim in the matter heard by Dunphy J. on June 18, 2019, as the current claim is based on the same facts set out in the original claim. He also found, based on a letter written by the appellant to the MTO in 2016, that the claim in relation to the medical suspension was also statute-barred, having been brought more than five years after it was discovered.

[6] While the trial judge decided the appellant’s claims on the basis of the limitations period issue, he commented briefly on eight of the appellant’s claims for “completeness”, none of which he found viable. He rejected her claim that the “apology letter” from ServiceOntario constituted an admission of liability. He also held that to the extent that the appellant had suffered any harm from the VIN error, she was the author of her own misfortune. But for her failure to deal with her parking tickets and fines, ServiceOntario would have validated her license and reassociated it with her vehicle. The trial judge flatly rejected the appellant’s assertion that she had never received the parking tickets finding that she had a representative defend them in court. He found her to lack credibility.

[7] The trial judge ordered costs on a substantial indemnity basis in the amount of $100,000. He found that the appellant should have accepted the respondent’s Rule 49 offer which provided for payment of her parking fines and costs in her favour on a partial indemnity basis, in exchange for dismissal of the claims. Instead, she persisted in not paying her parking tickets, took a statute-barred claim to trial, and advanced “patently false arguments that the parking tickets did not exist and that she did not know about them.” The trial judge found the appellant’s positions at trial to be “manipulative and entirely contrary to the evidence and to reality.” He rejected the appellant’s argument that costs should be reduced either because she was self-represented or because the Crown was the opposing party was, concluding that the appellant “must assume financial responsibility for her decision making.” He found nothing in her conduct of the action that would prompt him to discount the costs order.

C. Arguments on Appeal

[8] On appeal, the appellant argues that the trial judge made the following errors:

a. finding her claims to be statute-barred under the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (“Limitations Act”); b. misapplying the legal tests for the various causes of action raised and dismissing her claims; and c. ordering costs in the amount of $100,000.

[9] The appellant effectively seeks to relitigate the trial: she challenges virtually every finding of fact made by the trial judge and argues that the trial judge misstated and misapplied the law on every issue. She requests an order setting aside the decision, granting judgment in her favour, and setting aside the costs award. She seeks costs of the appeal and costs below.

D. Analysis

[10] For the purpose of this appeal, it is sufficient to address two issues: the impact of the Limitations Act on the appellant’s claims and the propriety of the costs award.

(i) The claims were statute-barred

[11] The appellant appears to argue that the trial judge erred in finding that her claims were statute-barred because he misapprehended the evidence regarding when she discovered her claims. She says she discovered the “injuries, losses and damages” caused by the Crown’s actions on December 16, 2019, October 12, 2022, and October 22, 2022. She does not address either the fact that the prior claim arising from the same facts was dismissed by Dunphy J. in 2019 or the letter to MTO in 2016 regarding the medical license suspension.

[12] A finding that a limitation period applies is a finding of mixed fact and law, which is entitled to deference on appeal, reviewable for palpable and overriding error: Fockler v. Spiegel, 2023 ONCA 148, at paras. 24-25; Dass v. Kay, 2021 ONCA 565, at para. 29. Findings of fact and credibility are also reviewable for palpable and overriding error. This is a high degree of deference: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 10.

[13] The trial judge correctly set out the applicable limitation period, as provided in s. 4 of the Limitations Act, being two years from the date the claim was discovered. He noted that s. 5(2) provides that actions are presumed to have been discovered at the time the events that underlie them have been discovered unless the contrary is proved. Under s. 5(1), discovery occurs (a) at the time the plaintiff knew of the facts giving rise to the claim; or (b) when a reasonable person in the plaintiff’s circumstances would have known of the facts giving rise to the claim.

[14] The trial judge found that the appellant knew of the facts giving rise to the VIN-related claim when she issued her first statement of claim on June 18, 2018. That claim is clearly based on the same facts and seeks similar relief. The trial judge noted that Dunphy J. explicitly stated in his March 29, 2019 order that the appellant was at liberty to commence another claim provided that the limitation period had not expired. Yet, the appellant did not file the new statement of claim in respect of this incident until 21 months later, in December 2021. This case is distinguishable from Longo v. MacLaren Arts Centre, 2014 ONCA 526, cited by the appellant, where discovery of the claim turned on when a “reasonable person” ought to have known of the facts giving rise to the claim. The trial judge here found, and the facts support, that the appellant was fully aware of the claim when she filed her first statement of claim.

[15] The date the appellant discovered her claim is a finding of fact. We find no error, whether palpable and overriding or otherwise, with respect to the date that she discovered her claim. The conclusion that the VIN-related claim was statute-barred is unassailable.

[16] The trial judge further found that the appellant had knowledge of the facts giving rise to the medical suspension-related claim when she addressed her letter to the MTO “Medical Review Board” on July 12, 2016, more than five years before she brought this claim. In that letter the appellant stated “I am writing to inform you of my extremely urgent situation, my license has been suspended in error… I have no health issues…” The conclusion of the trial judge that the medical suspension-related claim was statute-barred is also appropriate on the evidence.

[17] We would add that, as correctly noted by the trial judge, the six-month suspension of court operations during the Covid-19 pandemic between March 16 and September 14, 2020 does not assist the appellant. Accounting for that suspension, the limitation period in respect of the VIN-related claim expired on December 18, 2020, and the medical suspension claim expired two years after her letter to MTO, on July 12, 2018. The appellant’s statement of claim in this matter was filed December 21, 2021.

[18] The appellant asserts that the trial judge mischaracterizes her various causes of action. The claims being statute-barred is determinative of the appeal. It is therefore unnecessary to review the trial judge’s summary response to each of the specific claims of the appellant.

[19] We note, however, that we see no error in his application of the Apology Act, 2009, S.O. 2009, c. 3, to the short letter to the appellant from ServiceOntario dated November 26, 2018, apologizing for the VIN-related error. The letter constituted an “apology” as defined in the Act.

[20] Nor do we see any error in the conclusion of the trial judge that even if the claims were not statute barred, the appellant herself is the cause of any damages she may have suffered. We agree with the conclusion that “but for” her failure to pay her parking tickets and fines, she would have had her license plate validated and reassociated with her vehicle. The evidence that she had not paid those fines in full was overwhelming, and we see no basis to disturb the findings of fact and credibility made by the trial judge.

(ii) There is no basis to set aside the costs order

[21] The appellant argues that the costs ordered against her are exorbitant and “ridiculous.” She submits that costs should not be ordered against her because Crown lawyers are salaried employees. She argues further that the Crown had failed to prove its docket entries, and that it was the Crown’s conduct that necessitated a trial, not hers.

[22] The award of costs is governed by s. 131 of the Courts of Justice Act, R.S.O. 1990, c C.43 and r. 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The determination of costs is discretionary, and this court will not intervene unless there is an error in principle or the costs award is plainly wrong: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27; Galganov v. Russell (Township), 2012 ONCA 410, 294 O.A.C. 13, at para. 23.

[23] We are unable to find any reviewable error in the analysis of the trial judge in his costs determination. The respondent was wholly successful at trial. The appellant failed to accept a reasonable Rule 49 offer to settle. The respondent is thus, as a starting point, entitled to costs of a substantial indemnity basis from the date of the offer: r. 49.10(1). The trial judge found that the appellant’s conduct tended to lengthen unnecessarily the duration of the proceeding. He found that this was a claim doomed to fail, which the appellant litigated in an obstructive manner based on what he termed “patently false arguments.”

[24] The trial judge also found as a fact that the appellant is an “experienced litigant,” who would well have known the consequences of proceeding as she did. [^1] Indeed from 2018 onwards, a review of reported costs decisions indicates that the appellant has had at least six other costs awards against her. She has been repeatedly admonished for bringing meritless motions and proceedings based on unfounded allegations. Of course, the appellant is not to be punished for prior litigation in which costs have already been determined. The costs award must address the current litigation before the court. The point to be made is simply that, because of her prior experience, the appellant was on notice that frivolous litigation could lead to a substantial costs award.

[25] As this court very recently advised the appellant, a self-represented litigant is not exempt from costs: Rebello v. Ontario (Community Safety and Correctional Services), 2024 ONCA 718, at para. 17. The argument that costs are not payable where a party is the Crown cannot succeed as s. 131(2) of the Courts of Justice Act provides to the contrary. See also Ontario v. Rothmans Inc., 2012 ONSC 1804, 28 C.P.C. (7th) 103, aff’d 2013 ONCA 353, at paras. 136-137.

[26] In our view, the trial judge applied the appropriate principles in his determination of costs. The costs award is not based on an error in principle, nor is it plainly wrong. There is no basis on which to intervene.

E. Disposition

[27] The appeal, including as to costs, is dismissed.

[28] Costs are set at $5,000 inclusive of HST and disbursements, payable by the appellant within 30 days.

“C.W. Hourigan J.A.”

“L. Madsen J.A.”

“R. Pomerance J.A.”

[^1]: See eg. Rebello v. The Bank of Nova Scotia, 2018 ONSC 7127, Rebello v. Paragon Security, 2020 ONSC 2303, Rebello v. Del Property Management, 2021 ONSC 7888, Rebello v. The Bank of Nova Scotia, 2018 ONSC 4776, Rebello v. The Bank of Nova Scotia, 2017 ONSC 658, Rebello v. Attorney General for Ontario, 2021 ONSC 6502, Rebello v. Her Majesty the Queen in Right of Ontario, 2021 ONSC 3752. Note: this is not an exhaustive list.