Court File and Parties

CITATION: Argiloff v. O’Brien et al, 2024 ONSC 3166

DIVISIONAL COURT FILE NO.: 086/24

DATE: 20240603

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Evan Argiloff, Appellant

AND:

Ed O’Brien, Brendan O’Brien, 2104689 Ontario Inc. and Dearwood Holdings Inc., Respondents

BEFORE: Shore, J.

COUNSEL: Evan Argiloff, Self-Represented Appellant

Peter Smiley and Daniel Cohen, for the Respondents

HEARD: May 31, 2024

ENDORSEMENT

[1] The plaintiff/appellant filed a Notice of Motion seeking leave to appeal three orders of the Superior Court of Justice, being:

a. The order of McArthur J. dated January 11, 2024, which ordered costs against the appellant in the sum of $65,000, inclusive of HST and disbursements (the “Cost Order”);

b. The first order of Rady J. dated January 10, 2024, discharging a lien registered against the defendants’/respondents’ property, in accordance with the order of Mitchell J. dated May 30, 2023 (the “Lien Order”); and

c. The second order of Rady J. dated January 10, 2024, dismissing the appellant’s motion as it was served late (the “Engineering Order”).

[2] At the request of the respondents, and on reviewing the file, I directed the registrar to give notice to the appellant in Form 21A, by endorsement dated February 21, 2024. The notice from this court advised the appellant that the court was considering making an order under r. 2.1.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, dismissing his motions for leave to appeal as being frivolous, vexatious or an abuse of process.

[3] Under the provisions of r. 2.1.01(3), the appellant was invited to file written submissions within 15 days consisting of no more than 10 pages explaining why his motion should not be dismissed.

[4] The appellant was advised that the grounds for the motion under r. 2.1.02 were as follows:

a. The appellant failed to provide proper grounds for the appeal;

b. The appellant owes costs of over $109,000 as well as $20,000 for security of costs;[^1] and

c. The appellant’s actions in the Superior Court of Justice have been dismissed for being frivolous, vexatious and an abuse of process, and the motions for leave to appeal is a continuation of the abuse of process.

[5] The appellant filed written submissions.

[6] I have carefully reviewed the appellant’s submissions and, for the reasons that follow, I am satisfied that I should make an order dismissing the motion for leave to appeal and preventing any further motions in this action under subrules 2.1.02(1) and (3) until the outstanding costs owing by the appellant have been paid in full.

Legislative framework:

[7] Rule 2.1.02 is a streamlined procedure for disposing of motions that are, on their face, frivolous, vexatious or otherwise an abuse of process. The rule is not intended to supplant the established procedure of responding to a motion: Simpson v. Chartered Professional Accountants of Ontario, 2016 ONCA 806, 5 C.P.C. (8th) 280, at para. 43.

[8] Its purpose is “nipping in the bud actions which are frivolous and vexatious in order to protect the parties opposite from inappropriate costs and to protect the court from misallocation of scarce resources”: Markowa v. Adamson Cosmetic Facial Surgery Inc., 2014 ONSC 6664, at para. 3.

[9] Rule 2.1 is to be applied only in clear cases of abuse and is not for “close calls”: Raji v. Ladner, 2015 ONSC 801, at para. 9. See also Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6100, 37 C.L.R. (4th) 1, additional reasons at 2014 ONSC 6497, 61 C.P.C. (7th) 153 (“Gao (2)”).

[10] In Scaduto v. Law Society of Upper Canada, 2015 ONCA 733, 81 C.P.C. (7th) 258, the Court of Appeal affirmed and endorsed Myers J.’s narrow approach to the procedure, stating at para. 9:

We fully endorse that case law and the guidance that has been provided by [Myers J.] in the interpretation and operation of r. 2.1. This approach is summarized in Raji, at paras. 8-9, as follows:

[R]ule 2.1 is not for close calls. Its availability is predicated on the abusive nature of the proceeding being apparent on the face of the pleadings themselves. No evidence is submitted on the motion…. [T]here are two conditions generally required for rule 2.1 to be applied. First, the frivolous, vexatious, or abusive nature of the proceeding should be apparent on the face of the pleading as required by the rule. Second, there should generally be a basis in the pleadings to support the resort to the attenuated process of rule 2.1…. This second requirement is not in the rule and is not a fixed requirement. It strikes me as a guideline that reminds the court that there are other rules available for the same subject-matter and that resort to the attenuated process in rule 2.1 should be justified in each case.

[11] A vexatious litigant can have a legitimate complaint. It is not uncommon for there to be a real issue at the heart of a vexatious litigant's case. The problem is often that the litigant either cannot properly communicate the concern or, more typically, cannot accept that the law may not provide the remedy sought despite the unfairness felt by the litigant. While r. 2.1 should be applied robustly to bring an early end to vexatious proceedings, the matters should not be considered lightly or dismissively. Care should be taken to allow generously for drafting deficiencies and recognizing that there may be a core complaint which is quite properly recognized as legitimate, even if the proceeding itself is frivolously brought or carried out and ought to be dismissed: Gao (2), at para. 18.

[12] With this framework mind, I turn to the facts of the case before me.

The proceedings are entirely without merit:

[13] The response provided by the appellant highlights the very concern raised by the court, that the proceedings are entirely without merit. The appellant started his submissions as follows:

The three Endorsements being appealed in Toronto all stem from the removal of my 3 Construction Liens. The 3 Construction Liens I had filed on my own land. The defendants had no legal right to remove my own liens from my own land but that is exactly what they did. [Emphasis added.]

[14] The appellant’s grounds for appeal are rooted in the appellant’s position that the underlying orders were wrong. His material focuses almost entirely on why the underlying decisions were wrong. However, the underlying orders are not before this court. They are not subject to this appeal. For this reason, and as explained in more detail below, there is no merit to his appeals.

[15] I will now turn to the specific orders under appeal.

Justice McArthur’s Cost Order:

[16] Justice Tranquilli already dismissed the appeal of McArthur J.’s Cost Order for want of jurisdiction. The appellant served three notices of appeal to the Divisional Court in London, Ontario in and around the same time he served and filed the motions for leave to appeal in Toronto.

[17] In London, the appellant was seeking to appeal the Cost Order, four cost orders of Rady J. dated January 5, 2024, and the order of Mitchell J. dated May 30, 2023.

[18] Justice Tranquilli, sitting as a Divisional Court judge in London, made an order on January 30, 2024, that the Notice of Appeal with respect to the appeal of the Cost Order will not issue because the Divisional Court does not have jurisdiction to hear the appeal. Justice McArthur ordered costs from a final decision in excess of $50,000, and therefore the order lies to the Court of Appeal pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43. Nonetheless, the appellant filed an appeal of the Cost Order with the Divisional Court in Toronto. This issue has therefore already been determined as being in the wrong court.

[19] Even if I am wrong on this issue, I would still dismiss the appeal because the appeal has no merit.

[20] Justice McArthur made an order with respect to costs arising from a motion dismissing the appellant’s action. The appellant’s primary ground for appeal of the Cost Order relates to the underlying order of Grace J. dated July 18, 2023, which order ultimately dismissed the claim. Justice Grace’s decision is not under appeal. Therefore, this ground of appeal has no merit.

[21] The entirety of the grounds claimed for the motion for leave to appeal the Cost Order is stated as follows: “Justice McArthur failed to apply Rule 23 of the Rules of Civil Procedure and failed to apply Legal Land Ownership of Property Identification Number 53027-1304.”

[22] The appellant claims that McArthur J. failed to considered costs under r. 23, the rule that addresses costs when an action is discontinued. He disputes that his action was dismissed and insists it was discontinued. However, Grace J. dismissed the action, as follows: “In my view the discontinuance cannot, however, do an end run on Moore, J's clear endorsement of May 16, 2023. Having failed to comply, pursuant to rules 57.03(2) and 60.12, I exercise my jurisdiction to dismiss this action with costs to be assessed.”

[23] Justice Grace rejected the discontinuance and instead dismissed the action. Therefore, r. 23 is irrelevant for the purpose of the appeal. Justice Grace’s order is not under appeal and it is clear that the motion for leave to appeal cannot succeed on this ground.

[24] The only other ground for appeal of the Cost Order is the appellant’s claim that McArthur J. “failed to apply Legal Land Ownership of Property Identification Number 53027-1304”. In the submissions filed by the appellant in response to the Form 21A, the appellant makes submissions with respect to the correctness of the underlying orders for which the costs orders were awarded. That is, he argues the correctness of the orders made removing the liens, from which the cost orders were made. These orders are not subject to this appeal and therefore there is no chance of success on this ground.

Justice Rady’s Lien Order dated January 10, 2024

[25] In the Lien Order, Rady J. was simply clarifying and enforcing prior orders. Those prior orders are not under appeal. The appellant is appealing this order on the basis that the original order was wrong. This ground of appeal has no merit.

[26] The appellant previously registered three liens on land being developed as a subdivision by the respondents. These were removed by orders of Heeney and Mitchell JJ.

[27] On May 30, 2023, Mitchell J. found that the appellant had no ownership interest in the property and that his alleged claim was not lienable in any event. In addition, the appellant was prohibited from registering any construction lien without first obtaining leave of the court.

[28] Despite Mitchell J.’s order, on September 8, 2023, the appellant registered a further lien on the same property but did so under the name of Agriloff Engineering and Development Corp (“AEDC”), a company wholly owned and controlled by the appellant, of which he is the sole officer and director.

[29] The respondents brought a motion to remove this lien. Justice Rady granted the motion in the Lien Order, relying on Mitchell J.’s findings and simply clarifying and enforcing the terms of Mitchell J.’s order.

[30] Specifically, paragraphs 12 and 18 provide:

[12] In my view, the latest lien is a completely improper and transparent attempt to circumvent the order of Justice Mitchell. Although the lien claimant is AEDC, it is the plaintiffs’ company and he is its directing mind. The plaintiff himself submitted the lien and is the signatory. The inescapable conclusion is that the plaintiff used this company to shield his flagrantly improper conduct.

[18] To the extent that some further clarity is required, this Court will order that the plaintiff, his employees, servants, agents, successors, assigns and corporations are prohibited from making any further registrations against title to the Lands, without the express, written order made by a Justice of the Ontario Superior Court of Justice, which has been issued and entered.

[31] In his submissions with respect to the Form 21A, the appellant continues to argue that he has an interest in the land and that the removal of all three liens was inappropriate (including the one removed by order of Hennessey J., the two removed by order of Mitchell J. and the one removed by order of Rady J.).

[32] The order of Mitchell J. stands. It has not been set aside. The appellant has no chance of success on this ground of his appeal, which is entirely based on his claim that he has an interest in the land.

Justice Rady’s Engineering Order dated January 10, 2024

[33] The appellant brought a motion for a judge to sign an “Engineer’s Safety Compliance Order”. The motion was dismissed because the appellant failed to identify any provision or authority empowering the court to make such an order, and because the appellant was no longer the engineer for the subdivision. The Engineering Order was delivered after he was no longer employed. Justice Rady dismissed the motion because the motion was served late.

[34] His grounds for appeal on this issue have no merit.

[35] In any event, even if he has possible grounds for appeal, I would dismiss his appeal as he has failed to pay the costs of $125,632 owing under various cost orders made by the court. This is discussed in more detail below.

Failure to pay costs:

[36] The Court of Appeal in Susin v. Susin, 2014 ONCA 461, stated, at para. 3:

We also note that the record before us confirms the existence of several outstanding costs orders in other proceedings involving these appellants and one or more of the respondents to this appeal. These appear to include several costs orders in the Superior Court of Justice, as well as costs awarded by this court against these appellants and in favour of the respondent Fermino Susin by orders dated June 3, 2008 (C47484 - $3,500) and November 23, 2010 (C51985 and C51221 - $1,500). In our view, this appeal should also be quashed on the basis of the appellants' persistent and unexplained failure to honour these costs orders.

[37] The appellant owes over $125,600 in costs (a further $16,462.97 was ordered in costs, in addition to the outstanding amount of $109,170 referred to above).

[38] The appellant acknowledged that he owes costs but submits that the costs are not owing because he disputes them. Whether he agrees that he should pay costs or not is irrelevant. The orders have been made and not set aside. The appellant has failed to pay the costs and is in breach of the court orders.

[39] It would be neither reasonable nor fair to require the respondent to spend money and time to respond to the appeal or the motion for leave to appeal when there exists no tenable ground of appeal. It would be even more unfair to require the respondent to spend more time and money in responding to the appeal when the outstanding cost orders have not been paid, and there is no indication that the appellant intends to pay them.

[40] Even if I am wrong on this issue, I would dismiss the motion for leave to appeal, as the proceedings are frivolous, vexatious and an abuse of process.

Frivolous, vexatious and an abuse of process:

[41] A classic hallmark of an abusive proceeding is the existence of a multitude of other proceedings involving the same litigants: Markowa, at para. 11. Other common attributes of a vexatious litigant include rolling forward grounds and issues from prior proceedings to repeat and supplement them in later proceedings, including bringing proceedings against counsel who have acted for or against them, a failure to pay costs awards, and the persistent pursuit of unsuccessful appeals: Gao (2), at para. 14. I find that all these attributes are present in the case before me.

[42] There is no shortage of litigation involving these litigants. The original action was commenced in Stratford, Ontario. The appellant filed four different statements of claim. He also filed similar actions in Toronto. The statements of claim included the same parties and stemmed from the same set of circumstances between the parties.

[43] The respondents brought a motion to dismiss the actions in Stratford because they disclosed no reasonable cause of action, they were frivolous and vexatious, the appellant failed to pay the outstanding costs, and the appellant started similar actions in Toronto. The appellant sought an adjournment of that motion so he could retain counsel.

[44] Justice Moore made an order granting the adjournment but ordered that that the action be dismissed if the applicant failed to pay $20,000 for security for costs, with respect to costs previously ordered by Heeney J. and not paid.[^2] Further, the appellant was barred from bringing any further proceedings pending the motion to strike.

[45] Shortly thereafter, the appellant served a Notice of Discontinuance in the proceedings, seeking to avoid his obligation to pay the security for costs ordered by Moore J., and instead would rely on the similar proceedings he started in Toronto.

[46] Nonetheless, the motion was returned before the court in Stratford. The action was dismissed by Grace J., in a decision dated July 18, 2023, because the applicant failed to pay the security for costs. Justice Grace did not permit the appellant to rely on the Notice of Discontinuance.

[47] The applicant then commenced his appeal in Divisional Court in London, Ontario, with respect to the Stratford proceedings. He also commenced a nearly identical appeal in Divisional Court in Toronto with respect to the same proceeding.

[48] In the meantime, the appellant continued to move forward on the four civil proceedings he commenced in Toronto. On March 3, 2024, Merritt J. made an order expediting the respondents’ application to have the appellant declared a vexatious litigant. All proceedings and actions (there were four known to the respondents at the time) were stayed pending the outcome of that motion.

[49] The appellant has appealed the order of Merritt J. to this court, alleging that the three lawyers acting for the various respondents lied to the court, have no integrity, are under investigation with the Law Society of Ontario, and have stolen and embezzled funds.

[50] Finally, the appellant has also reported several of the lawyers acting on behalf of the respondents to the Law Society of Ontario, alleging terms as embezzlement, fraud, lying to the court, dishonesty, stealing, theft, threatening, oppression, and bullying.

[51] Having considered the case law in this area, the litigation history, the lack of merit in the motion for leave to appeal, the unpaid costs, and the various endorsements of the court, I am satisfied the motion for leave to appeal is frivolous, vexatious and an abuse of process.

Order:

[52] This court orders that:

a. The motion for leave to appeal are dismissed against all of the respondents.

b. Before bringing any further motions for leave to appeal or before commencing any further appeals to this court, the appellant is required to satisfy all outstanding costs orders made against him by judges of both this court and of the Superior Court of Justice and shall file proof by affidavit that he has done so.

________________________ Shore J.

[^1]: Although this has now increased to $125,632.97. [^2]: The appellant sought to appeal the order of Heeney J., but the appellant failed to seek leave and leave was never granted with respect to that appeal.