Court File and Parties

Court File No.: 12 06098

Ontario Court of Justice

Between:

Steven Tonner

— and —

Elizabeth Silcox and Tom Wright

Before: Justice of the Peace R. S. Shousterman

Pre-enquete heard: October 22, 2012, January 14, 2013, May 27, 2013, October 28, 2013, and February 10 and May 26, 2014

Reasons released: August 11, 2014

Counsel:

• B. Barnier and D. Bryant for the Crown
• S. Tonner In Person

Reasons for Decision

JUSTICE OF THE PEACE R. S. SHOUSTERMAN:

Introduction

[1] Mr. Tonner has brought a private complaint against Elizabeth Silcox and Tom Wright. He alleges that Ms. Silcox and Mr. Wright, during the time period between June 2, 2004 and June 30, 2012, committed the criminal offences of obstruct justice, fabricate evidence and harassment.

[2] According to Mr. Tonner these individuals are in control of his real estate licence. What I believe Mr. Tonner means is that Ms. Silcox and Mr. Wright have some authority, or were, at one point, in a position of authority to deal with a complaint and/or complaints against Mr. Tonner. According to Mr. Tonner, Tom Wright is or was the president of the Real Estate Council of Ontario (RECO) when the subject matter leading to this pre-enquete first arose. Ms. Silcox is or was counsel for the Real Estate Council of Ontario during this same time period.

[3] Mr. Tonner's real estate licence was revoked on or about August 22, 2005.

[4] This pre-enquete proceeding was completed on May 26, 2014. I reserved my decision.

Procedural History

[5] This pre-enquete opened before me on October 22, 2012. On that date I advised Mr. Tonner that, in my opinion and based on what he had told the Court, the pre-enquete process was not the proper forum for hearing his complaints. Based on the testimony I heard on October 22, 2012, I advised Mr. Tonner that the proper forum is the real estate board which has the authority to conduct discipline proceedings and that if Mr. Tonner was not content with the result of the discipline process, he had remedies available to him outside of the pre-enquete process. As such I advised Mr. Tonner that the proceedings could not move forward.

[6] Mr. Tonner submitted that I was incorrect as my initial thoughts were based on an incorrect understanding of the history of the matter. Mr. Tonner advised there were numerous court decisions which he wished to place before me to enable this Court to have a more complete understanding of why he had elected to proceed by way of the pre-enquete process.

[7] Mr. Tonner has a right of audience. On October 22, 2012, the Court was not aware that there were numerous court orders declaring Mr. Tonner a vexatious litigant.

[8] Mr. Tonner's inability to properly articulate the issues on the first appearance suggested that I could do one of two things: first, dismiss his application outright which would only lead to an application for certiorari and mandamus on the basis that he did not have all "his ducks in a row" on the first date, or, second, adjourn the matter for Mr. Tonner to provide this Court with documentation. As such, I adjourned the matter to January 14, 2013 for Mr. Tonner to provide copies of the decisions of McCombs J. as well as the Notice of Appeal to the Court of Appeal and the decision of the Court of Appeal as these decisions had been mentioned by Mr. Tonner but he did not have copies of them readily available.

[9] Mr. Tonner did not make the disclosure ordered.

[10] Mr. Tonner did not attend court on January 14, 2013. As such, I dismissed his application.

[11] Mr. Tonner subsequently brought an application for certiorari and mandamus to set aside the dismissal and returning the pre-enquete before this Court. The order was granted on May 6, 2013 and the matter returned before me on May 27, 2013. On that date I was provided with copies of the orders of McCombs J. and the Court of Appeal. Mr. Tonner was ordered to file all material he intended to rely upon prior to Labour Day and the pre-enquete was scheduled to return for a two day hearing on October 28 and 29, 2013.

[12] On October 28, 2013, I stayed the proceedings on the basis Mr. Tonner was declared a vexatious litigant and vacated the October 29, 2013 date.

[13] Mr. Tonner brought a second application for certiorari and mandamus. The application was granted and the matter returned before me on February 10, 2014. As Mr. Tonner had still not produced the disclosure I had ordered him to produce by Labour Day 2013, I adjourned the hearing to May 26, 2014. I advised Mr. Tonner that if he wished to rely on any material he needed to produce it prior to the return date and, that if he did, I would read it in advance of the May 26, 2014 date.

[14] Mr. Tonner complied with the Court's order. I have read all of the material provided by Mr. Tonner so that this Court could attempt to understand what has transpired (historically) such that it led him to commencing the pre-enquete process here in Newmarket.

[15] There are multiple lawsuits against numerous parties.

[16] Mr. Tonner has been declared a vexatious litigant by numerous courts and there are multiple cost orders against him. He has also been charged criminally.

The Complaint and the Application for Judicial Review

[17] On or about May 5, 2003, Oswald Logozzo sent a letter to Allan Johnson regarding issues relating to Mr. Tonner's conduct including alleged statements Mr. Tonner had made. The complaint was referred to a panel of the Real Estate Council of Ontario ("RECO") discipline committee. The panel members of the discipline committee hearing the complaint were Barry Lowry, Anita Merlo and George Watson. According to Mr. Tonner this panel was chosen by Mr. Wright.

[18] Mr. Tonner submits that the complaint should not have proceeded as it pertained to an incident that took place in a classroom and not while he was engaged in the practice of trading in real estate. He submits that RECO acted outside its jurisdiction in convening the hearing and subsequently disciplining him.

[19] I cannot make a determination on a pre-enquete as to whether RECO acted inappropriately. That determination is for a different court.

[20] Unfortunately, everything that has come to pass over the past ten years has been as a result of this discipline proceeding and Mr. Tonner's position that he has not been allowed to exercise his right to a hearing. Specifically, he argues that RECO and its members, as well as its counsel and president, have precluded him from having his application for judicial review heard.

[21] He submits that there has been interference from members of the Law Society, members of the judiciary and peace officers, all of whom have, to some degree, stopped him from having his "day in court".

[22] On the basis of the material I have read, he is mostly correct.

[23] At the same time, Mr. Tonner has done himself no favours. He has been diligent in suing everyone who disagrees with him in every forum that he can think of. His actions, as a self-represented litigant, are out of control. This litigation has become his life. Had he sought counsel initially, indeed had he attended his discipline hearing, the result may well have been different. But as a self-represented litigant, he has caused so much chaos that he has prejudiced his right to be heard.

[24] The discipline hearing took place on June 2, 2004. Mr. Tonner did not attend. On June 10, 2004, the panel released its decision. Mr. Tonner was ordered to pay an administrative penalty of $5,000 and he was placed on probation for two years.

[25] Mr. Tonner was notified that he had thirty days from July 19, 2004 to appeal the decision.

[26] He did not do so at that time. Instead, he brought an application for judicial review. On July 19, 2004, the respondents to that application brought a motion for an order striking out or staying Mr. Tonner's application for judicial review. Epstein J. (as she then was) struck the application on the basis that it was premature as Mr. Tonner had not exhausted his remedy to appeal under RECO's by-laws.

Court File No. 359/04

[27] Mr. Tonner subsequently appealed the decision of the discipline committee. The decision was upheld on December 13, 2004.

RECO File No. 036265

[28] Mr. Tonner submits that Tom Wright and Elizabeth Silcox obstructed justice by lying to Epstein J. regarding his right to make submissions or bring forth new evidence at the appeal. He submits that this was the basis upon which Epstein J. determined that the application for judicial review was premature.

[29] This is part of the difficulty with self-represented litigants: they genuinely do not understand the process. Mr. Tonner was advised he had a right of appeal. He ignored that and brought his application for judicial review. Epstein J. found that application to be premature. Mr. Wright was not counsel before Epstein J. Ms. Silcox, as RECO's in-house counsel, instructed outside counsel, Messrs. Borden Ladner. The respondents were entitled to argue that the application for judicial review was premature and therefore should be dismissed. When Mr. Tonner appealed to the proper RECO panel, the respondents were entitled to make the arguments they deemed necessary in seeking a dismissal of the appeal.

[30] As I tried to explain to Mr. Tonner, written and oral submissions are simply that: submissions. It is up to the presiding judicial officer to make the decision as best he or she can based on the material before him or her. Parties can argue in the alternative; there is no rule precluding that type of argument.

The Stay of the Order of the Discipline Committee and the Application for Judicial Review

[31] On March 9, 2005, Mr. Tonner brought an application for judicial review.

[32] On March 10, 2005, Kiteley J. ordered that upon payment by Mr. Tonner of $1,500.00 the order of the discipline committee dated December 13, 2004, was stayed pending the hearing of his application for judicial review. Mr. Tonner paid the $1,500.00 ordered by Kiteley J.

Court File No. 98/05

[33] On June 13, 2005, RECO brought an application for security for costs. Jennings J. ordered Mr. Tonner to post security of $6,500.00 within twenty days of June 13, 2005. Mr. Tonner did not make the payment.

[34] On August 17, 2005, RECO brought a motion to dismiss Mr. Tonner's application for judicial review on the basis that he had not paid security for costs as ordered by Jennings J. Carnwath J. granted the motion.

[35] As previously mentioned, Mr. Tonner's real estate licence was revoked on August 22, 2005.

[36] Mr. Tonner appealed the order of Carnwath J. and also brought a motion to set aside the dismissal of the application for judicial review. The motion was dismissed on November 9, 2005. Mr. Tonner sought leave to appeal the order of the Divisional Court.

The Pre-enquete Proceedings in Newmarket: Criminal Harassment

[37] On June 2, 2004, Mr. Tonner swore an information before a Justice of the Peace alleging that on or about April 23, 2004 John K. Burnet, Bruce Jackson and Anita John criminally harassed him.

[38] On June 2, 2004, Mr. Tonner swore an information before a Justice of the Peace alleging that on or about May 22, 2003 Oswald Logozzo criminally harassed him.

[39] On July 22, 2004 the matter was adjourned at Mr. Tonner's request.

[40] On September 22, 2004, Mr. Tonner sought another adjournment. This request was refused and the application dismissed.

[41] In reading the material provided by Mr. Tonner it appears as though RECO was advised of the ongoing pre-enquete. RECO sent counsel to the September 22, 2004 hearing and counsel participated in the hearing. This does not make sense. I cannot fathom how RECO would have learned about the pre-enquete unless Mr. Tonner or someone involved in the proceedings notified RECO. Even if notification came from Mr. Tonner, RECO had no right to attend as the pre-enquete hearing is ex parte, the defendant is not notified and has no right to be present or heard. This was a clear breach of Mr. Tonner's right to have the hearing held in camera and ex parte.

The Provincial Offences Act Pre-enquete in Newmarket, the Order of McCombs J and the Appeal to the Court of Appeal

[42] On or about August 11, 2004, Mr. Tonner, in accordance with s. 23 of the Provincial Offences Act, laid a private information against Anita John, Allan Johnston, Bruce Jackson and RECO. Her Worship Chapelle received the information and issued summonses returnable September 24, 2004. On that date the matter was adjourned to November 19, 2004.

[43] On October 18, 2004, Anita John et al. brought an application to quash the information and summonses. The application was returnable December 15, 2004. It was adjourned to January 19, 2005.

[44] On January 19, 2005, McCombs J. quashed the information and summonses. He ordered that the issuance of any additional summonses relating to the pending hearings relating to Mr. Tonner were prohibited without leave of the Court. He also ordered that no application for further summonses may be made without notice to the persons or entities involved and without their being given an opportunity to respond to the application.

Court File No. SM125/04

[45] I was not told what happened to the on-going matter in Newmarket however the order of McCombs J. speaks for itself.

[46] Mr. Tonner appealed the order of McCombs J. The respondents sought an order for security for costs which was granted by MacPherson JA on March 31, 2005. Mr. Tonner submits the motion for security for costs was a subversion of justice. He submits that the seeking of security for costs was done to dissuade him from being heard. I disagree. The respondents were entitled to bring their application for security for costs in accordance with Rule 56 of the Rules of Civil Procedure.

[47] On May 10, 2005, Sharpe JA dismissed Mr. Tonner's appeal as he had failed to post security for costs.

Court File No. C43012

[48] On March 8, 2007, the Supreme Court of Canada dismissed Mr. Tonner's application for an extension of time for leave to appeal from the judgment of the Ontario Court of Appeal in file no. C43012.

Docket 31706

[49] On April 30, 2007, the Court of Appeal exercised its jurisdiction and granted leave for Mr. Tonner to bring a motion to reinstate his appeal on the basis that he could now post the security for costs previously ordered. Mr. Tonner was granted until May 15, 2007 to post security for costs and, once done, the appeal involving Anita John, Allan Johnson, Bruce Jackson and the Real Estate Council of Ontario was reinstated.

Docket M34839, C43012

[50] On November 21, 2008, the Court of Appeal heard the appeal. Paragraph 3 of McCombs J.'s order was struck and paragraph 2 was varied. Mr. Tonner was awarded costs.

Docket C43012

[51] On February 13, 2009, the Court of Appeal ordered that the sum of $5,000 posted by Mr. Tonner as security for costs be released to him.

Docket C43012

[52] In conclusion, the order of McCombs J. stands in force relating to the Provincial Offences Act information sworn by Mr. Tonner on August 11, 2004 as against Anita John, Allan Johnson, Bruce Jackson and the Real Estate Council of Ontario which quashes that information and the summonses that were issued as part of that proceeding. Those parties are not Elizabeth Silcox or Tom Wright.

The Toronto Small Claims Court Actions

[53] On November 30, 2005, Mr. Tonner issued a statement of claim against Barry Lowry, Remax Twin City Realty Inc., George Watson, Royal LePage The Beach and Beyond Realty Inc., Anita Merlo and Bosley Real Estate Ltd., for, inter alia, damages for libel and slander relating to statements made at Mr. Tonner's discipline hearing on June 2, 2004 in which Mr. Tonner was ordered to pay an administrative penalty of $5,000 and put on probation for two years.

Toronto Small Claims Court File No. SC-05-28614-00

[54] On November 30, 2005, Mr. Tonner issued a statement of claim against Chris Kapches, Chestnut Park Real Estate Limited, Carole Murphy, Coldwell Banker Sturino Realty Ltd., Laura Graham and Sutton Group Incentive Realty Inc., for, inter alia, damages for libel and slander relating to statements made at Mr. Tonner's discipline hearing appeal on December 13, 2004.

Toronto Small Claims Court File No. SC-05-28615-00

[55] It is unclear whether these actions were struck out because Mr. Tonner did not pay a costs order, or stayed or dismissed.

The Order of Belobaba J.

[56] On October 23, 2006, Belobaba J. granted the applications of the Real Estate Council of Ontario and the Ontario Real Estate Association, Edward Barisa, Oswald Logozzo, Robert W. Eby, Robert W. Eby Real Estate Ltd., Arlene Bonilla, Rocchina Golden and Shelley Koral and declared Mr. Tonner to be a vexatious litigant. Mr. Tonner was prohibited from instituting any further proceedings in any court except by a judge of the Superior Court of Justice. All proceedings previously instituted by Mr. Tonner were ordered stayed except by leave of a judge of the Superior Court of Justice with the exception of Mr. Tonner's leave application to the Supreme Court of Canada (Supreme Court of Canada File No. 31490). Mr. Tonner was also ordered to pay costs.

Toronto Court File Nos. 06-CV-309072PDI and 06-CV-309990PD2

[57] Mr. Tonner submits that the order should not have been granted for numerous reasons. The main thrust of his argument is the allegation that Belobaba J. was the former partner of Keith Guerts, counsel for the Ontario Real Estate Association, and that it was inappropriate and a conflict of interest for Belobaba J. to sit on a matter in which his former law partner acted as counsel.

[58] I do not know if the relationship between Belobaba J. and Mr. Guerts was that of law partners prior to Belobaba J.'s appointment to the Superior Court of Justice in 2005. If the two had been partners prior to Belobaba J's appointment, then one would have thought that there would have been some discussion about recusal due to the perceived conflict of interest especially since Mr. Tonner was self-represented. I do not know what, if any, discussion was held on October 23, 2006.

[59] Mr. Tonner submits that Elizabeth Silcox obstructed justice by placing before Belobaba J. material that was misleading including particulars of his ongoing criminal court matters. He submits that the ongoing criminal court matters were included in Ms. Silcox's affidavit in order to sway Belobaba J. in declaring him a vexatious litigant.

[60] On November 9, 2006, the Supreme Court of Canada dismissed Mr. Tonner's application for leave to appeal from the order of the Ontario Court of Appeal in file no. M33233 dated April 10, 2006. Mr. Tonner was ordered to pay costs.

Docket 31490

[61] Mr. Tonner brought a motion to reconsider his application for leave to appeal. The documentation submitted by Mr. Tonner was not complete and therefore not accepted for filing by the Supreme Court of Canada. The documents were mailed to Mr. Tonner and subsequently returned by the post office on April 27, 2007.

Docket 31490

[62] On April 7, 2007, Mr. Tonner brought an application against Anita John, Allan Johnston, Bruce Jackson and RECO. Boswell J. stayed the application on May 17, 2011. Mr. Tonner subsequently brought a motion for leave. The motion and application were dismissed by Boswell J. on December 9, 2011.

Newmarket Court File No. CV-07-083660

[63] Mr. Tonner also brought an application against RECO and OREA. That application was stayed by Boswell J. on May 17, 2011.

Newmarket Court File No. CV-07-083661

[64] On February 11, 2011, Mr. Tonner brought an application in Toronto for leave to commence a proceeding and for an order rescinding the order of Belobaba J. dated October 23, 2006. Pollack J. granted leave to commence the proceeding. Her order did not address whether Belobaba J.'s order was set aside or not.

[65] On April 12, 2011, Mr. Tonner brought an application for leave to commence a proceeding against the Toronto Police Services Board, Detective James Armstrong, Detective Ronald Chouinard, Chief of Police William Blair, HMQ in Right of Ontario, Jason Kenny, John Desontis, Elizabeth Silcox, Oswald Logozzo, the City of Toronto, the York Region Police Service Board, Sergeant Southwell, the Real Estate Council of Ontario, Ontario (Attorney General) and the Ontario Real Estate College and to set aside the order of Belobaba J. dated October 23, 2006.

Toronto Court File No. CV-11-420126-0000

[66] Mesbur J. ordered Mr. Tonner to file proper motion material and set out a schedule for the exchange of material. The application was scheduled to be heard June 21, 2011. The matter did not proceed on that date and was adjourned to July 21, 2011.

[67] On July 12, 2011, Mr. Tonner brought an application for, inter alia, rescission of the order of Belobaba J. The application was stayed by Boswell J. on December 9, 2011.

Newmarket Court File No. CV-105101-00

[68] Mr. Tonner testified that as a result of a threat he received on July 19, 2011, he cancelled everything in Toronto. I do not know if he means he abandoned the application. It is clear though that there was an appearance before Himel J. on July 21, 2011, that Mr. Tonner indicated to the Court that he was not proceeding with the matter and that Himel J. ordered Mr. Tonner to pay costs in the amount of $50,000.00 in his absence as he had left. Himel J. dismissed the application.

Toronto Court File No. CV-11-420126-0000

[69] Mr. Tonner issued the same proceedings by way of Statement of Claim on July 21, 2011 out of Newmarket. Mr. Tonner brought a motion dated October 9, 2011 for leave to proceed with the action. Boswell J. dismissed the motion and action on December 9, 2011.

Newmarket Court File No. CV-11-105211-00

[70] On August 11, 2011, Mr. Tonner brought an application to set aside the order of Belobaba J. The application was dismissed by Salmers J. on September 21, 2011.

Newmarket Court File No. CV-11-105559-00

The Criminal Charges

[71] Mr. Tonner alleges that in 2005 Ms. Silcox and Mr. Wright paid Detective Armstrong to charge him with criminal harassment. He was, in fact, charged with assault and criminal harassment. Ms. Silcox was the complainant.

[72] As previously mentioned, I have read Ms. Silcox's affidavit. I must admit I have some concerns regarding the veracity of the alleged assault. There is, however, no doubt that Ms. Silcox found a friendly peace officer in Detective Armstrong who became involved in Mr. Tonner's matters.

[73] Mr. Tonner alleges that Detective Armstrong told him that unless he withdrew his small claims court matters and did not go to court he would charge him criminally. Mr. Tonner viewed this as a threat that Detective Armstrong acted upon. That is unfortunate. I do not doubt that Detective Armstrong tried to warn Mr. Tonner that if he did not cease and desist with his persistent litigation that he could be charged criminally.

[74] On December 29, 2005, Mr. Tonner attended before a Justice of the Peace in Toronto to lay a private information against Tom Wright, Elizabeth Silcox, John Burnet and Allan Johnson. The pre-enquete was scheduled for February 6, 2006.

[75] The material I have read, including a portion of the transcript of the January 10, 2007 appearance before French J., suggests that the crown attorney, Ms. Gonet, notified the police of the content of the private information and the date of the pre-enquete hearing. If true, this was a breach of Mr. Tonner's rights as well as a breach of the Rules of Professional Conduct.

[76] Detective Armstrong notified Ms. Silcox that a private information had been laid by Mr. Tonner on December 29, 2005. Ms. Silcox, in turned, notified Messrs. Borden Ladner.

[77] On February 6, 2006, Ms. Gonet advised the Court of the order of McCombs J. and requested that the pre-enquete be noted as abandoned. His Worship Skjarum noted the application as abandoned.

[78] With all due respect to my learned colleague, only Mr. Tonner could abandon his application. Had Mr. Tonner not attended court, then His Worship Skjarum could have found that Mr. Tonner abandoned his application. While the ruling was incorrect, nonetheless this Court cannot act as an appeal court and correct the endorsement.

[79] Detective Armstrong charged Mr. Tonner with disobeying a court order, to wit, the order of McCombs J. I do not know when Mr. Tonner was arrested; suffice it to say that he was released on bail on February 22, 2006.

[80] The law is clear: the order of McCombs J. stood in force and effect until it was subsequently varied. As such, Mr. Tonner was obligated to abide by the terms of that order. It does not matter whether the order was properly made or not. It does not matter that the order was subsequently varied. The order of McCombs J. was in force on December 29, 2005 and, according to the police, Mr. Tonner disobeyed it.

[81] The difficulty with such a clear pronouncement of the law is that McCombs J. could not have intended his order to preclude Mr. Tonner from attending before a Justice of the Peace and asking that criminal charges be laid. The civil court cannot interfere with criminal court proceedings. But that is what happened here.

[82] On April 18, 2007, Mr. Tonner attended before His Worship Fredericksen in Newmarket to lay a private information as against Detective Armstrong. The pre-enquete was scheduled for April 25, 2007. I was not advised what happened with respect to this matter.

[83] Mr. Tonner's evidence regarding the litany of criminal charges he faced between 2005 and 2012 was not as helpful as it could have been. I found his evidence on this issue to be somewhat disorganized. As I understand matters, during the seven year period mentioned above, he was charged with the following offences:

• Criminal harassment and assault
• Disobeying a court order
• Obstruction of justice
• Failing to attend court
• Obstructing a peace officer

[84] As I understood his evidence, he spent time in jail. There is no doubt that much of this could have been avoided if Mr. Tonner had listened and not gone off half-cocked. There is also no doubt that Mr. Tonner was hard done by the judicial system. The order of McCombs J. could not have been taken to apply to the laying of a private criminal information and yet that is how the police chose to read it. Once charged with disobeying a court order, the majority of the other criminal charges followed one after another.

[85] Mr. Tonner submits that he waited until his criminal charges had been completed before bringing this pre-enquete in Newmarket.

[86] Mr. Tonner submits that Detective Armstrong was at the Newmarket Courthouse on October 28, 2013 in an attempt to interfere with this hearing and that he did so interfere. The claim of interference is rubbish. A pre-enquete is an in camera proceeding.

[87] Detective Armstrong would have no reason to attend my courtroom. Further, unless the officer was a witness to be called by Mr. Tonner, I would not have allowed him to attend in my courtroom. That being said, I have no knowledge as to whether Detective Armstrong was at the courthouse on October 28, 2013.

The Execution

[88] On May 28, 2009, an execution was registered as against Mr. Tonner in the County of Lanark. The amount of the judgment was $5,000. The solicitor registering the execution was Ms. Silcox.

Toronto Court File No. CV-09-374761

[89] Mr. Tonner submits Ms. Silcox fraudulently registered the execution. He submits that she fabricated evidence in so doing. Unfortunately and somewhat ironically, this is the only court file for which I have no documentation. Specifically, I was not provided with a copy of a court order in court file no. CV-09-374761 indicating Mr. Tonner was to pay $5,000.00. I do not know what, if anything, this execution relates to. It may be that the execution relates to the $5,000.00 Mr. Tonner was ordered to pay at his discipline hearing in 2004 and that Ms. Silcox waited until almost the end of the limitation period to register the execution. There is nothing that prohibits counsel from so doing.

[90] A successful litigant has the right to enforce judgment, including an award of costs. One method of enforcement is by filing an execution with the sheriff's office. The filing of the execution is not a fraudulent act.

[91] On November 25, 2011, Mr. Tonner brought an application in Perth as against the Sheriff of the County of Lanark. Mr. Tonner was ordered to serve the respondent and the matter was adjourned to February 3, 2012.

[92] On January 30, 2012, McNamara J. declared Mr. Tonner a vexatious litigant. The order set out a schedule that Mr. Tonner had to follow if he chose to file material or institute proceedings in any court in Ontario.

Perth Court File No. CV-11-905

[93] On June 8, 2012, Mr. Tonner brought an application in Napanee as against the Sheriff of the County of Lanark. He was ordered to serve the respondent and the matter was adjourned to July 13, 2012. On July 13, 2012, Polowin J. stayed the application as Mr. Tonner had not complied with the requirements of the order of McNamara J. dated January 20, 2012.

Napanee Court File No. CV-12-237-0000

The Law

[94] Section 137 of the Criminal Code states:

137. Every one who, with intent to mislead, fabricates anything with intent that it shall be used as evidence in a judicial proceeding, existing or proposed, by any means other than perjury or incitement to perjury is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

[95] Section 139(3)(a) of the Criminal Code states:

(3) Without restricting the generality of subsection (2), every one shall be deemed wilfully to attempt to obstruct, pervert or defeat the course of justice who in a judicial proceeding, existing or proposed,

(a) dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence.

[96] Section 139(2) of the Criminal Code states:

(2) Every one who wilfully attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the course of justice is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

[97] Sections 264(1) and (2)(b) of the Criminal Code state:

(1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

(2) The conduct mentioned in subsection (1) consists of

(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them.

Analysis

[98] My initial concern that many of the issues raised had been previously dealt with is incorrect. Mr. Tonner has not had a hearing on the issues raised in this pre-enquete. He was precluded from dealing with his claims against Elizabeth Silcox and Tom Wright in other forums.

[99] As I indicated at the outset, I am not an appeal court. My job is to solely determine whether process should issue as against Elizabeth Silcox and Tom Wright.

[100] The principles to be applied in deciding whether process should issue are whether there is any evidence on each essential element of the charged offences without engaging in any weighing of that evidence.

[101] It is difficult to ignore Mr. Tonner's behaviour throughout the past ten years. His numerous lawsuits against persons who have no interest in any of his issues have caused aggravation and frustration to all concerned.

[102] Mr. Wright may not have chosen a good panel to determine the discipline hearing; in fact, the panel chosen may have had it in for Mr. Tonner and wished nothing more than for him to resign. That is not relevant but it may go to some of the animosity amongst the members of RECO, its brokers and agents.

[103] The panel may have misunderstood their jurisdiction and acted outside of same. As I stated earlier in my reasons, that is an issue for another court to decide.

[104] Every order declaring Mr. Tonner a vexatious litigant was premised on the order made by Belobaba J. As I indicated in my reasons, that order is problematic if there was a conflict of interest which was not disclosed. The written reasons of Belobaba J. do not deal with the issue of conflict of interest.

[105] Unfortunately, if there was a conflict of interest which was not disclosed, that impacts upon the orders of Boswell J., McNamara J. and Polowin J.

[106] Mr. Tonner did not like Belobaba J.'s decision. He has made allegations against Belobaba J. as well as counsel at Messrs. Borden Ladner and attempted to have criminal charges brought against them for doing their job.

[107] I find such conduct to be a gross abuse of process. The remedy for a disgruntled litigant is to appeal. Mr. Tonner has gone way beyond that.

[108] It is time to end matters. Mr. Tonner has had his hearing. This may be the first time that someone has granted him the right of audience and allowed him to testify without interruption and/or interference.

[109] As I indicated at the outset, I am not an appeal court. I am not a reviewing court. The object of the pre-enquete process contemplated in s. 507.1 of the Criminal Code is to provide a mechanism whereby an informant can come before the criminal court and ask that the court issue a summons or warrant to compel an accused to attend before a justice to answer a criminal charge. Having determined that the information is valid on its face, the test is whether the evidence presented has disclosed a prima facie case. As the Court of Appeal stated in R v. McHale, 2010 ONCA 361 at para. 74:

[74] Conduct of the pre-enquete vindicates the interest of the private informant who seeks prosecution of another for an alleged crime. The pre-enquete assures the private informant that an independent judicial officer will hear the informant's allegations, listen to the evidence of the informant's witnesses, and decide whether there is evidence of each essential element of the offence charged in the information. The pre-enquete also ensures that spurious allegations, vexatious claims, and frivolous complaints barren of evidentiary support or legal validity will not carry forward into a prosecution…

[110] On the basis of the documentary evidence I read and on the oral evidence of Mr. Tonner, I do not find that a prima facie case has been established as against Tom Wright on the charges of fabricating evidence, obstructing justice and criminal harassment. I heard no evidence that suggested Tom Wright fabricated evidence or criminally harassed Mr. Tonner. In terms of the allegation that Mr. Wright obstructed justice by:

(a) lying to Epstein J., Mr. Tonner's own evidence suggests that was not the case. Ms. Silcox was the instructing solicitor, not Mr. Wright;

(b) interfering in the pre-enquete hearing on February 6, 2006, there is no evidence of same. His Worship Skjarum's error in declaring Mr. Tonner's application abandoned when he had not done so was an error in law. Ms. Gonet had a copy of the order of McCombs J. The order was not sealed and, as such, was in the public domain.

[111] As such, that portion of the application is dismissed.

[112] In terms of Elizabeth Silcox, I must admit that I have some concerns. I have read her affidavit, or at least those portions of her affidavit which were placed before me by Mr. Tonner. I find her affidavit to be misleading at times, and, on occasion, her recitation of the facts to be sloppy at best. This may be because she does not practice civil litigation and so her use of civil terminology is not as careful as it could be. I do not view this sloppiness or carelessness as an intention to mislead the Court.

[113] While I have some concerns regarding the execution, I heard no evidence with respect to what that execution pertained to. In other words, I do not know whether that execution pertained to the original discipline order or to something else. The court file number associated with the execution is not a court file number for any documents that were placed before me. As such, I cannot find that a prima facie case has been made out that Ms. Silcox obstructed justice and/or fabricated evidence with regard to the execution.

[114] I do not find, on the evidence before me, that a prima facie case has been made out that Ms. Silcox engaged in a course of criminal harassment. The essential elements of the offence of criminal harassment are that the accused knew her conduct caused the complainant to be harassed or that she was aware of such a risk and was reckless or wilfully blind as to whether the person was harassed.

[115] Ms. Silcox retained and instructed counsel. Counsel did their job. While Mr. Tonner may view their efforts as being aggressive and bullying at times, the evidence before me does not suggest that Mr. Tonner's view is correct. When Mr. Tonner had his own counsel, Messrs. Borden Ladner dealt with him. When Mr. Tonner chose to represent himself they dealt with Mr. Tonner.

[116] There is no evidence that Ms. Silcox repeatedly communicated with Mr. Tonner either directly or indirectly except by directly responding to him or speaking with him upon him initiating communication with her or through counsel.

[117] Mr. Tonner testified that he had concerns regarding threats and/or harassment of his mother but the maker of the threats and/or the intimidation he felt was not from Ms. Silcox but instead from a peace officer. I did not hear any evidence which suggests that Ms. Silcox was indirectly involved in this issue. While Mr. Tonner may believe otherwise, his evidence was lacking in this regard.

[118] Having found that a prima facie case has not been made out as against Elizabeth Silcox, that portion of the application will also be dismissed.

Conclusion

[119] In conclusion, while Mr. Tonner may have been hard done by the persons against whom he seeks to have criminal process instituted, I am not satisfied that process should issue. I find that Mr. Tonner has failed to establish any evidentiary basis that Tom Wright and Elizabeth Silcox committed the alleged offences. For greater certainty, I find that no prima facie case has been established as against Tom Wright and Elizabeth Silcox. In coming to this conclusion, I wish to make it clear that I have not formed the opinion that any of the charges are frivolous, vexatious or an abuse of process and, furthermore, I was not requested to make such a finding by the crown.

[120] The application is dismissed.