Court File and Parties

CITATION: Mohammed v. Dysart (Municipality), 2022 ONSC 6092

OSHAWA DIVISIONAL COURT FILE NO.: DC-22-1298

DATE: 2022-10-27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jameel Mohammed, Plaintiff/Appellant

AND:

The Municipality of Dysart and Laurie Salvatore, Defendants/Respondents

BEFORE: The Honourable Mr. Justice R.E. Charney

COUNSEL: Jameel Mohammed, Self-Represented

John F. Black, Counsel for the Respondents

HEARD: In-Writing

ENDORSEMENT

[1] On March 21, 2022, the Appellant, Jameel Mohammed, filed a Notice of Appeal, purporting to appeal from the decisions of:

a) Justice Lack, dated November 23, 2020

b) Justice Corkery, dated June 11, 2021

c) Justice Lavine, dated February 28, 2022

[2] The appeals all related to an Application that Mr. Mohammed commenced against the Respondents on August 18, 2020, seeking an Order that the Respondents allow him to construct a foundation for a religious memorial on his mother’s grave site at the Evergreen Cemetery.

[3] I reviewed the Appellant’s Notice of Appeal in my role as Triage Judge for Divisional Court, Central East Region. On March 28, 2022, I issued a direction under Rule 2.1.01 of the Rules of Civil Procedure stating that the Notice of Appeal appeared on its face to be an abuse of process and directing the Registrar to send a notice to the Appellant to provide the opportunity to explain why the Notice of Appeal should not be quashed in accordance with the process set out in Rule 2.1.01(3).

[4] After receiving the Appellant’s submissions, I issued an Endorsement on June 27, 2022 (Mohammed v. Dysart (Municipality), 2022 ONSC 3803) striking the Notice of Appeal on the basis that the orders the Appellant sought to appeal were all interlocutory orders for which leave to appeal was required.

[5] I also noted that the Appellant had been declared to be a vexatious litigant pursuant to s. 140 of the Courts of Justice Act by Loukidelis J. in the case of Corporation of the United Townships of Dysart v. Mohammed, 2007 45407 (ON SC).

[6] In his decision, Loukidelis J. described the issue as follows, at paras. 3, 4, 7 and 8:

With respect to the Dysart application the unfortunate chain of events started with the death of Mr. Mohammed’s mother Mrs. Elaine Wilson. A burial plot was purchased in the Dysart municipal cemetery known as Evergreen Cemetery.

Mr. Mohammed felt that his religious beliefs in marking his mother’s grave should override any by-law regulations that governed all grave sites in that cemetery.

All his claims relating to this dispute have been adjudicated and cannot be re-litigated, a fact the respondent cannot accept.

The decisions of Glass J., Wood J., and the Divisional Court closed that issue and all avenues of appeal have been exhausted.

[7] Loukidelis J. found, at paras. 25 -26:

Mr. Mohammed a.k.a. Adolphus Wilson is a litigant spiralling out of control who will continue to litigate and harass unless he is stopped now. He ignores cost orders while the applicants are forced to incur heavy legal expenses to defend each action. Enough.

He must be prohibited from continuing this course of conduct.

[8] A full history of this decision and the related actions is set out in paras. 35 – 40 of my June 27, 2022 Endorsement.

[9] I noted, at para. 40 of the June 27, 2022 Endorsement, that the “relief requested in this latest Application is identical to the relief requested in the earlier proceedings, all of which were dismissed”.

[10] As such, the June 27, 2022 Endorsement stated, at paras. 42-42:

All three of the Orders which the Appellant purports to appeal are interlocutory orders for which the Appellant must seek leave to appeal. On this basis alone, his Notice of Appeal dated March 21, 2022 must be struck out as an abuse of process.

Moreover, the Appellant cannot proceed with any further proceeding, including any motions for leave to appeal, appeals or applications, until he obtains leave of the Court to institute or continue with the proceeding pursuant to s. 140(3) of the Courts of Justice Act. Pursuant to s. 140(4)(b), “the person making the application for leave may seek the rescission of the order made under subsection (1) but may not seek any other relief on the application” (Emphasis Added).

[11] The June 27, 2022 Endorsement made the following Order:

a) The Notice of Appeal dated March 21, 2022 is struck out.

b) The Application is stayed until the Applicant obtains leave of the Court to institute or continue with the proceeding pursuant to s. 140(3) of the Courts of Justice Act.

c) The registrar shall accept no correspondence and no further filings from the Appellant in this Appeal or the main Application except only the Appellant’s Application for leave pursuant to s. 140(3) of the Courts of Justice Act.

d) I will remain seized of this matter. If the Appellant files an Application under s. 140(3) of the Courts of Justice Act, the Application shall be dealt with in writing.

[12] Pursuant to that Order, on September 13, 2022, Mr. Mohammed filed an Application for Leave to Proceed. In this application he seeks leave to proceed with the application against the Respondent Municipality of Dysart to allow him to construct a foundation for a religious memorial on his mother’s grave site at the Evergreen Cemetery. Mr. Mohammed wants to construct a foundation that is 62 inches, but the Municipality, which owns the cemetery, only permits foundations of 41.5 inches. He alleges that this violates his right to freedom of religion.

[13] The Municipality takes the position that the monument that Mr. Mohammed seeks to have installed in this proceeding is exactly the same monument that was the subject of his earlier proceedings that were dismissed by the Court. The Courts determined that the monument did not comply with the municipal by-laws regarding monument size. Mr. Mohammed’s freedom of religion argument was dismissed. The $62,976 in costs that Mr. Mohammed was ordered to pay Dysart in those earlier proceedings remain unpaid.

[14] The Respondent advises that Mr. Mohammed previously sought to rescind the s. 140 Order, but his application was dismissed by Mulligan J. on November 17, 2008. Mulligan J. held, at para. 10, that the material filed in Mr. Mohammed’s application “simply rolls forward the same claims brought in previous actions all of which were considered by Justice Loukidelis. The material does not disclose any ground for these proceedings.”

Analysis

[15] Pursuant to s. 140(1) of the Courts of Justice Act, a person declared to be a vexatious litigant may not bring further proceedings in Court without leave of the Court. Section 140 provides:

Vexatious proceedings

140 (1) Where a judge of the Superior Court of Justice is satisfied, on application, that a person has persistently and without reasonable grounds,

(a) instituted vexatious proceedings in any court; or

(b) conducted a proceeding in any court in a vexatious manner,

the judge may order that,

(c) no further proceeding be instituted by the person in any court; or

(d) a proceeding previously instituted by the person in any court not be continued,

except by leave of a judge of the Superior Court of Justice.

Application for leave to proceed

(3) Where a person against whom an order under subsection (1) has been made seeks leave to institute or continue a proceeding, the person shall do so by way of an application in the Superior Court of Justice.

Leave to proceed

(4) Where an application for leave is made under subsection (3),

(a) leave shall be granted only if the court is satisfied that the proceeding sought to be instituted or continued is not an abuse of process and that there are reasonable grounds for the proceeding;

(b) the person making the application for leave may seek the rescission of the order made under subsection (1) but may not seek any other relief on the application;

(c) the court may rescind the order made under subsection (1);

(d) the Attorney General is entitled to be heard on the application; and

(e) no appeal lies from a refusal to grant relief to the applicant.

[16] As indicated by s. 140(4)(a) leave to proceed “shall be granted only if the court is satisfied that the proceeding sought to be instituted or continued is not an abuse of process and that there are reasonable grounds for the proceeding”.

[17] The material filed by the Applicant in support of his application fails to satisfy me that the proceeding sought to be instituted is not an abuse of process. His claim is identical to the claim already dismissed by the courts in the various other proceedings reviewed by Loukidelis J. and Mulligan J. in their respective decisions. The monument he wants to erect is exactly the same as the monument he sought to erect in those earlier cases against the same defendants/respondents. The by-law relied on by the Municipality is the same by-law considered by the courts in those earlier cases. This is yet a further attempt to re-litigate the same issue and is therefore an abuse of process.

[18] In The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, the Ontario Court of Appeal stated, at para. 61:

It is well-recognized that the relitigation of issues that have been before the courts in a previous proceeding will create an abuse of process. As stated by the Supreme Court of Canada in Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, [2003] S.C.J. No. 64, 2003 SCC 63, at para. 52:

[F]rom the system’s point of view, relitigation carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole.

[19] See also: Winter v. Sherman Estate, 2018 ONCA 703, at paras. 7 and 8.

[20] Mr. Mohammed’s latest Application is an abuse of process against the Respondents because it is an attempt to relitigate the decisions of Glass J., Wood J., and the Divisional Court, all of which were reviewed by Loukidelis J. in his 2007 decision. Neither the passage of time nor Mr. Mohammed’s subsequent efforts to persuade the Municipality to permit the construction of the foundation for a memorial to his mother have changed the underlying factual or legal issues presented in his original proceedings.

[21] Accordingly, the Applicant’s motion for leave to proceed under s. 140(3) of the Courts of Justice Act is dismissed, and his Application is dismissed.

[22] The Applicant is prohibited from filing any further material with respect to this Application.

[23] The written approval of the Applicant is not required as to form and content of the Order.

Justice R.E. Charney

Date: October 27, 2022