CITATION: Hicks v. Ontario Ombudsman, 2020 ONSC 6258
COURT FILE NO.: 344/20
DATE: 20201015
SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT
RE: Hicks v. Ontario Ombudsman
COUNSEL: Mr Hicks, self-represented
No one appearing for the respondent Ombudsman[^1]
BEFORE: D.L. Corbett J.
DATE: October 9, 2020
ENDORSEMENT
D.L. Corbett J.
[1] On October 9, 2020, the court held a show cause hearing into Mr Hicks’ breach of a court order declaring Mr Hicks a vexatious litigant and restraining his access to the justice system. At the conclusion of the hearing I cited Mr Hicks for contempt of court and adjourned sentencing to October 23, 2020, 2:00 p.m., by Zoom videoconference, and ordered Mr Hicks to appear at that time.
[2] The background describing Mr Hicks’ breach of a court order is set out in my prior endorsement (2020 ONSC 5989). I do not repeat the matters set out in that endorsement and incorporate those matters into this endorsement by reference.
[3] On October 9th, it was clear from the outset that Mr Hicks had breached the order of Corthorn J. in which he was declared a vexatious litigant and required to obtain prior leave from a judge before commencing or continuing a court proceeding. The issue at this show cause hearing was to learn of any explanation Mr Hicks might have for his conduct that could excuse it or cast it in a light that rendered his conduct less than a contempt of court.
[4] Mr Hicks sent a large volume of materials to the court in advance of the hearing. These materials were not attached to an affidavit from Mr Hicks and so are not properly in evidence before the court (though some of the materials are copies of administrative decisions and court decisions of which the court could take judicial notice). Mr Hicks advised the court that he did not intend to give evidence at the show cause hearing.
[5] The court reviewed all of the materials provided by Mr Hicks, with a view to considering whether any of those materials could assist Mr Hicks if they were properly in evidence. As I explain, none of these materials could assist Mr Hicks.
[6] Based on the materials sent to the court, and Mr Hicks’ statements to the court at the show cause hearing, Mr Hicks raises the following arguments:
a. The order finding him a vexatious litigant and restricting his access to the courts is incorrect, illegal, and he is not bound to follow it;
b. He should not have to exercise his appeal rights respecting the order of Corthorn J., because to do so would require him to pay court fees, an obligation that amounts to “extortion” by the justice system;
c. Before he commenced an application in Divisional Court against the Ontario Ombudsman, he wrote a letter to Corthorn J. asking her to set aside her own order restricting his access to the justice system. He has not received a response to this letter, and so his request is still outstanding. All of this, Mr Hicks argued, was good faith compliance with the term of the order of Corthorn J. that he obtain prior leave from a judge before commencing a new proceeding.
d. The matters he seeks to raise in his application against the Ombudsman are publicly important and have to do, in part, with solving a murder case and issues related to the Inquiry into Missing and Murdered Indigenous Women. Citing Mr Hicks for contempt of court and requiring him to obtain leave reflect an effort on the part of the justice system to ignore these important issues.
[7] None of these arguments assist Mr Hicks. As he presented these arguments, it became increasingly clear that he will not do as he is told and will not accept directions given to him by the courts. This poses a challenge on sentencing, which I will address at the end of these reasons. It also establishes that the restrictions placed upon Mr Hicks by Corthorn J. should be augmented by further restrictions to reduce the expense to which the justice system and adverse parties may be put in future by Mr Hicks.
1. The Order is Authoritative
[8] The order of Corthorn J. is a court order that has not been varied or set aside on appeal. It has the force of law and is binding on Mr Hicks. He must obey it. If he does not, he will be sent to jail. If he reoffends again, he will be sent to jail again. This is a point that Mr Hicks must be brought to understand: his view of the merits of the order are irrelevant. We live under the Rule of Law. In this system of government, everyone, including Mr Hicks, must obey a judge’s order.
[9] Mr Hicks’ only available recourse, if he disagrees with the order of Corthorn J., was to appeal that order to the Ontario Court of Appeal. He did not do so and so the order of Corthorn J. remains as authoritative.
[10] Claiming that an authoritative court order is not valid and does not have to be followed because Mr Hicks thinks the order is wrong is – itself – the height of vexatious conduct and shows a disrespect for the justice system and our broader community that lives under the Rule of Law. This argument not only raises no defence for Mr Hicks but elevates concerns that he is likely to reoffend.
2. The Requirements for Exercising Appeal Rights Are Not Unduly Burdensome
[11] There are court fees litigants must pay for taking various litigation steps. These fees are prescribed by provincial Regulation. In other words, the fees are set by law. The law prescribing these fees applies to Mr Hicks as it applies to everyone else accessing the court system in Ontario.
[12] Mr Hicks did not argue that the fees are unduly burdensome to him and represent a material barrier to justice for him. If that had been his objection, there would have been an answer: fee waivers may be obtained by persons who show that they meet the test for them – an exemption that is, itself, prescribed by law. Further, a judge of the court has the discretion to waive court fees in an appropriate case. Mr Hicks presented no evidence and made no argument that he cannot pay court fees, nor was this the purport of his argument.
[13] There is an irony here. Mr Hicks has engaged in considerable litigation, both in court and before administrative tribunals. This litigation has put the justice system to considerable expense. Court fees defray only a small portion of the cost of maintaining the justice system. One of the reasons Mr Hicks has been declared a vexatious litigant is that his conduct, as a litigant, has put the justice system and his opponents to unreasonable expense because of his behaviour. On Mr Hicks’ view of matters, he should be left, unchecked, to put the system and his opponents to expense, but he himself should not be required to incur expense. Requiring him to pay court fees is “extortion’, in his view – a view that is objectively unreasonable and reflects his overall attitude to the justice system. The argument is without merit.
3. Mr Hicks’ Letter to Corthorn J. Is Not A Good Faith Request for Permission to Bring a New Proceeding
[14] Under the order of Corthorn J., the proper way for Mr Hicks to proceed, if he wanted to obtain permission to bring a new legal proceeding, is to bring a motion in the Superior Court of Justice, on notice to affected parties and to the Attorney General of Ontario. Instead, Mr Hicks wrote a letter to Justice Corthorn.
[15] It is not proper to write to a judge about a matter she has decided, except in narrow circumstances that do not apply here.
[16] Mis-directing his request to Justice Corthorn is not a contempt of court or necessarily an abuse of process. Mr Hicks is self-represented. If his communication had been a good faith effort to bring a proper motion for leave to commence a proceeding, his communication would have been redirected to proper channels and he would have been provided with directions from court staff about how to proceed properly.
[17] Mr Hicks’ letter to Justice Corthorn is not a motion brought under s.140(3) of the Courts of Justice Act. It is a short handwritten letter. Mr Hicks, though self-represented, is an experienced self-represented litigant and he understands what a motion is. However, this failure in form would be overlooked, even if it would be difficult to see it as inadvertent, if the substance of the letter had been a good faith request that leave be granted for him to commence a new proceeding. Again, if the letter had requested this, it would have been redirected and court staff would have advised Mr Hicks to bring a motion rather than writing a letter.
[18] The larger problem with Mr Hicks’ letter to Justice Corthorn is that it is not a good faith request to be granted permission to commence a new proceeding, written in compliance with the order of Corthorn J. It is a letter criticizing Justice Corthorn’s decision and demanding that she set her own order aside and recuse herself from the bench pending an investigation into her conduct and criminal prosecution of her at the behest of Mr Hicks.
[19] A letter such as this is not provided to the judge for response. It is wholly improper and would usually attract a response in the manner of a rebuke from an administrative official in the court. I will respond to the letter in this endorsement to make it clear to Mr Hicks that he must not send such correspondence to the court again.
[20] If Mr Hicks is unhappy with a judicial decision, his recourse is an appeal to the Court of Appeal. If he believes that a judge has acted improperly, he may complain to the Canadian Judicial Council. Those are his avenues of recourse.
[21] The substance of Mr Hicks’ letter is not a request for leave pursuant to the order of Corthorn J. It is a challenge to the order itself, a challenge that is entirely improper. Justice Corthorn has finished her work on Mr Hicks’ case. She has no jurisdiction to go back and change her order now. Threatening her with “investigation” or “prosecution’ is, itself, vexatious conduct and may be a contempt of court by itself.
[22] Mr Hicks is entitled to seek permission to commence a new proceeding. That is provided for in the order of Corthorn J. But he may not do so on the basis that the order of Corthorn J. is wrong. The issues decided by Corthorn J. have been decided on a final basis and Mr Hicks may not relitigate them on a motion for permission to bring proceedings.
[23] Ordinarily, when a vexatious litigant seeks permission to bring a new proceeding, the litigant should address the following issues:
a. The proceeding he wishes to bring appears to have some merit and materiality.
b. The litigant has paid outstanding costs orders against him or her and/or has some way to satisfy the court that s/he will pay any adverse costs orders made in the proposed new proceeding.
c. There is some assurance that the litigation will be pursued by the vexatious litigant in a reasonable fashion. This could be addressed in several ways, such as:
i. A plan for effective case management that will reduce the risk of vexatious behavior without putting the justice system to unreasonable expense;
ii. Representation of the vexatious litigant by competent counsel;
iii. Representation of the vexatious litigant by a responsible litigation guardian (where, for example, vexatious conduct has been the result of mental illness or other incapacity); and
iv. Evidence that the vexatious litigant has enough insight into his past misconduct to persuade the court that his past behavior is unlikely to recur.
d. That the proposed new litigation is not aimed, directly or indirectly, at persons previously vexed by the vexatious litigant and that the proposed new litigation does not seek to relitigate matters decided previously.
e. That, weighing all of the circumstances, on balance, justice commends permitting the vexatious litigant access to the justice system for the proposed new claim.
[24] Mr Hicks’ letter to Justice Corthorn does not address any of these issues. Instead, it is an attack on Justice Corthorn’s order and on Justice Corthorn herself. As such, the letter is an abuse of process and is itself vexatious. It is not a good faith request for permission to bring a proceeding in accordance with Justice Corthorn’s order.
[25] Further and in any event, a request for permission to bring a proceeding is not the same thing as obtaining leave from a judge to proceed. Justice Corthorn’s order is crystal-clear that Mr Hicks must obtain leave before commencing a new proceeding, and I am satisfied that he fully understood this.
4. The Merits of Mr Hicks’ New Application Are Immaterial to the Contempt Issue
[26] Mr Hicks argued that his application against the Ombudsman is important and that preventing him from bringing it because of the order of Corthorn J. is motivated by some desire on the part of the court to avoid adjudicating Mr Hicks’ claims.
[27] The merits of Mr Hicks’ application against the Ombudsman are not relevant to the contempt issue. They could be relevant to a request to bring this proceeding, but they have nothing to do with whether Mr Hicks obtained prior permission to bring the application, and his explanations for failing to do so in accordance with the order of Corthorn J. I declined to hear details of the merits of the application against the Ombudsman for this reason.
Conclusion on the Issue of Contempt of Court
[28] Mr Hicks breached the order of Corthorn J. His arguments in justification of his conduct offer no defence for his conduct and, to the contrary, raise concern that he will not abide by the order of Corthorn J. in future. Mr Hicks has shown no insight into his conduct – either that leading to the decision of Corthorn J., or that leading to this show cause hearing. I find that Mr Hicks is in contempt of court in commencing an application of Divisional Court without obtaining prior leave to so do from a judge of the Superior Court of Justice.
Controlling Mr Hicks’ Behaviour
[29] The order of Corthorn J. was intended to control Mr Hicks’ access to the courts, and to provide him with a means to seek access to the justice system in a proper case. He has breached the order, flouted the process for obtaining leave, and then dumped an enormous volume of irrelevant documents on this court in his own defence and a request that this court give him permission to bring litigation in future. The terms imposed by Corthorn J. are standard ones in cases where a person is declared vexatious. By his conduct, Mr Hicks has shown that his access to the courts needs to be controlled more tightly in future. In the exercise of my inherent jurisdiction as a Superior Court Justice, I order as follows:
Mr Hicks may not seek leave to commence or continue legal proceedings pursuant to the order of Corthorn J. without first obtaining permission from the Case Management Judge (defined below) to bring a motion seeking leave under s.140(3) of the Courts of Justice Act.
If Mr Hicks wishes to seek permission pursuant to para. 1., he shall write a letter of no more than three pages in length, to which he may attach an affidavit of no more than ten pages in length (including exhibits and attachments). In seeking permission, Mr Hicks should address the salient points described in para. 23 of this decision, set out above, and any other points Mr Hicks believes bears on his request for permission. In seeking permission, Mr Hicks shall not serve his request on any adverse party or the Attorney General, and no responding submissions shall be provided to the Case Management Judge unless that judge expressly requests otherwise.
If Mr Hicks is given permission by the Case Management Judge to seek leave to commence or continue a proceeding, then he shall bring a motion pursuant to s.140(3) in accordance with directions given for this motion by the Case Management Judge.
This order is in addition to, and does not change the order of Corthorn J., which remains in full force and effect.
The “Case Management Judge” is D.L. Corbett J. or such other judge who is designated as Case Management Judge under this order by the Regional Senior Justice of the East Region of the Ontario Superior Court of Justice (the “RSJ”). If, at any time, there is no Case Management Judge, then the role of Case Management Judge shall be fulfilled by the RSJ or by his or her designate.
[30] It is not my intention to undertake the role of Case Management Judge for long, however I want there to be someone to whom Mr Hicks may seek permission to move for leave to bring his proceeding against the Ombudsman in a timely way, given that he must obtain leave by November 30th or his application will be dismissed. If Mr Hicks wishes to seek permission, he shall make his request to me in accordance with paragraph 30 of these reasons no later than November 6, 2020.
Sentencing
[31] The sentencing hearing shall take place on October 23, 2020, by Zoom videoconference, as a directed at the conclusion of the show cause hearing of October 9, 2020.[^2] Mr Hicks should understand that the purpose of the sentencing hearing is to impose an appropriate sentence for my decision to hold Mr Hicks in contempt of court. It will not be open to Mr Hicks to challenge the finding of contempt itself at the sentencing: that decision has been made and is no longer open to argument in this court.
[32] As I explained to Mr Hicks at the show cause hearing, the court is concerned about controlling Mr Hicks’ unacceptable behavior in future. He is not required to like, or to agree with, decisions made by the court, but he is required to follow court orders. The court has a strong reluctance to impose a custodial sentence for what appears to be a first offence, and this reluctance is heightened in the midst of the COVID-19 pandemic, when correctional institutions are challenged to keep inmates and employees safe, and incarceration could pose health risks for Mr Hicks himself. On the other hand, Mr Hicks’ behavior suggests that he may be ungovernable unless a short sharp jail sentence is imposed to make it clear to him that there will be real consequences for him if he will not obey the law. Mr Hicks would do well to reflect on these points and seek legal advice in advance of the sentencing hearing on October 23, 2020.
Appeal Rights
[33] Justice Corthorn’s order and my order apply to proceedings in any Ontario court. They do not apply to proceedings in the Federal Court of Canada or the Supreme Court of Canada, but they do apply to proceedings in the Ontario Court of Appeal.
[34] The law is unclear as to whether the requirement to obtain leave (and the requirement I have imposed in this order to obtain permission to move for leave) apply to the vexatious litigant decision itself or to a finding of contempt of court. So that there is no uncertainty for Mr Hicks on these points, I order as follows:
a. Mr Hicks does not require permission or leave from the Superior Court of Justice to pursue appeal rights respecting the decision of Justice Corthorn finding him a vexatious litigant. This order does not affect Mr Hicks’ appeal rights in respect to the order of Corthorn J., and in particular does not extend the time within which that appeal could have been brought.
b. I grant Mr Hicks permission and leave to pursue an appeal to the Ontario Court of Appeal of this decision and the decision I make on his sentence for contempt of court, pursuant to this order and the order of Corthorn J.
Proceedings in the Federal Court of Canada
[35] Subsequent to the hearing on October 9, 2020, Mr Micks write to court staff advising that he has brought proceedings in the Federal Court of Canada to quash this court’s decision finding Mr Hicks in contempt of court. The Federal Court of Canada does not have jurisdiction to hear appeals or applications for judicial review from decisions of this court. The Ontario Court of Appeal has that jurisdiction. Mr Hicks has been told that once by the Federal Court (a decision he is apparently trying to appeal to the Federal Court of Appeal), he was told this again by this court on October 9, 2020. Mr Hicks, as a self-represented litigant, is entitled to assistance from the court to bring his matters forward properly. Of course, if Mr Hicks will not listen to the direction he is given to provide him with this assistance, he has no one but himself to blame.
[36] Mr Hicks suggested in his email that his sentencing hearing should not proceed because of the steps he has taken in the Federal Court. The sentencing hearing shall proceed, as scheduled, on October 23rd. Mr Hicks has been ordered to attend that hearing. If he does not attend, the court may issue a bench warrant for his arrest so that he may be brought before the court in person for his sentencing, and so he may show cause why he should not be cited for contempt of court for breaching the court’s order to attend on October 23, 2020.
Effectiveness of this Endorsement
[37] The finding of contempt and the order to appear on October 23rd were effective as of October 9, 2020, when made orally to Mr Hicks. This endorsement is effective from the time as unsigned copy is emailed to Mr Hicks; a signed copy shall be provided to Mr Hicks in due course.
D.L. Corbett J.
Date Endorsement Released: October 15, 2020
[^1]: The court directed in its prior endorsement that counsel for the Ombudsman had standing to appear at this show cause hearing but was not required to do so. Counsel advised in advance that the Ombudsman would not appear.
[^2]: Mr Hicks was directed by me to appear before me on October 23, 2020 at 2:00 pm. Unfortunately, court staff subsequently advised Mr Hicks by email that the date was October 26th, a mistake Mr Hicks identified in a responding email. Court staff subsequently confirmed the correct date by email to Mr Hicks – October 23rd.