Court File and Parties

CITATION: Sieluzycki v. Ontario, 2024 ONSC 5695 DIVISIONAL COURT FILE NO.: 208/24 DATE: 20241016

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: MICHAEL SIELUZYCKI, Applicant -and- HIS MAJESTY THE KING IN RIGHT OF ONTARIO, HAMILTON POLICE SERVICES, JOHN BEAR BUICK CHEVROLET GMC CADILLAC LTD, POSNER METALS LIMITED, HUMAN RIGHTS TRIBUNAL OF ONTARIO, ONTARIO INDEPENDENT POLICE REVIEW DIRECTORATE, Respondents

BEFORE: FL Myers J

COUNSEL: Michael Sieluzycki, for himself Adrienne Ralph, for His Majesty the King in Right of Ontario Kathryn Meehan, for Hamilton Police Services Matthew Johnstone, for John Bear Buick Chevrolet GMC Cadillac Ltd. Amanda McInnis, for Posner Metals Limited Mindy Noble, for Human Rights Tribunal of Ontario Maeve Mungovan, for Ontario Independent Police Review Directorate Mark MacNeil, for the Ministry of Public and Business Services Delivery and the Director of the Motor Vehicle Accident Claims Fund

READ: October 11, 2024

ENDORSEMENT

[1] In my endorsement dated September 3, 2024, reported at 2024 ONSC 4861, I dismissed Mr. Sieluzycki’s motion to extend the time to bring this application for judicial review. I invited written submissions on costs. In addition, I gave notice to Mr. Sieluzycki that I was considering making an order cancelling his fee waiver and to prohibit him from obtaining further fee waivers in this or any related proceeding without first obtaining approval of a judge.

Material Filed by the Parties

[2] I received costs submission on behalf of Posner Metals Limited and John Bear Buick Chevrolet GMC Cadillac Ltd.

[3] I have also received Mr. Sieluzycki’s response to the costs submissions. In addition, he has delivered a letter asking for a hearing under s. 137.1 of the Courts of Justice Act¸ RSO 1990, c C.43 apparently on the basis that the requests for costs are a SLAPP proceeding.

[4] Mr. Sieluzycki has also delivered a motion record seeking an order setting aside the September 3, 2024 order. The jurisdictional basis for the motion is not clear. However, in my view, it is best treated as a motion under s. 21 (5) of the Courts of Justice Act under which a panel of three judges is empowered to vary or set aside an order made by a judge on a motion. Accordingly, the motion will be referred to the administrative judge for motions under s. 21 (5).

[5] Although the September 3, 2024 order is being reviewed, it is not stayed. I must therefore complete the process for the parties and to ensure a completed package is provided to any court that reviews the order.

[6] I decline to schedule any motion under s. 137.1 of the CJA at this time. By its terms s. 137.1 (3) of the CJA as not applicable to the setting of costs under s. 131 of that same statute after a proceeding has been dismissed.

Costs

[7] Posner Metals Limited seeks costs on a substantial indemnity basis of $5,417.68. It submits that this proceeding was frivolous. It submits that Mr. Sieluzycki continues to bring frivolous proceedings and that he will not discuss settlement on a reasonable basis despite entreaties to him to do so.

[8] John Bear Buick Chevrolet GMC Cadillac Ltd. seeks costs on a substantial indemnity basis of $2,336.13. It notes that the underlying dispute that has launched Mr. Sieluzycki on years of unsuccessful administrative proceedings involves a failed car sale transaction in which Mr. Sieluzycki sought to sell his used car for $250.

[9] Mr. Sieluzycki submits that there should be no costs because there has been no hearing of his motion. He notes that he is seeking to set aside the September 3, 2024 order. He submits that Posner Metals Limited committed a hate crime when it seized components of his car after the Hamilton Police service refused to take or produce a report on the transaction. He says that Posner Metals Limited is treating him as an ATM to cover up its own wrongdoing. He submits that there is a power imbalance between Posner Metals Limited and himself so that the court should consider the psychological constraints placed on him in bringing proceedings for the wrongful taking of his car. He submits that Posner Metals Limited exacerbating his distress by refusing to settle.

[10] To stress the seriousness and severity of his of his concerns, Mr. Sieluzycki submits:

20. The Responding Party did experience a loss or abnormality of psychological function as a result of Posner Metals Limited’s negligence to an extent that the Responding Party will never be able to operate (nor drive) a motor vehicle in Canada again where the Responding Party did discover the servants of HMKRO committing this act of state acquiesced fraud against Michael David Sieluzycki under HMKRO’s state acquiesced “tow truck turf war” for the purpose of intimidating (i.e. the discriminatory harassment of) Michael David Sieluzycki with HMKRO’s objective of subjecting Michael David Sieluzycki to the unusual punishment via the discursive dialogues in the English language on the prohibited grounds of Michael David Sieluzycki’s ancestry.

[11] As a result, Mr. Sieluzycki submits that an award of costs against him would amount to cruel and unusual punishment as prohibited under s. 2 of the Canadian Bill of Rights. He says it amounts to a SLAPP proceeding contrary to that section and s. 6 of the Ontario Human Rights Code. Finally, he submits that a costs award would amount to,

…discriminatory harassment on account of the [Mr. Sieluzycki]’s having been a member in good standing of the vocational association whose name was the Ontario College of Trades on all the prohibited grounds of discrimination (or mainly disability and ancestry).

[12] The fixing of costs is a discretionary decision under section 131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure. These include the principle of indemnity for the successful party (57.01(1)(0.a)), the expectations of the unsuccessful party (57.01(1)(0.b)), the amount claimed and recovered (57.01(1)(a)), and the complexity of the issues (57.01(1)(c)). Overall, the court is required to consider what is “fair and reasonable” in fixing costs, and is to do so with a view to balancing compensation of the successful party with the goal of fostering access to justice: Boucher v Public Accountants Council (Ontario), 2004 14579 (ON CA), (2004), 71 O.R. (3d) 291, at paras 26, 37.

[13] The normal outcome is that the unsuccessful party in civil litigation is ordered to partially indemnify the successful party for the legal costs it incurred in successfully defending the proceeding.

[14] None of Mr. Sieluzycki’s submissions provide a basis to depart from the normal outcome. There was no oral hearing of Mr. Sieluzycki’s motion for an extension of time to bring the proceeding. The motion was dealt with in writing at his request and on consent. Steps were duly scheduled in my June 13, 2024 endorsement. I read the parties’ material and decided the motion in writing as scheduled.

[15] There is no evidence of any hate crime or abuse of power in this proceeding. Mr. Sieluzycki commenced a proceeding to seek judicial review of several decisions made by administrative tribunals. He needed an order to extend the time to challenge the final decisions that had been made. That motion failed.

[16] In the September 3, 2024 decision, I held that Mr. Sieluzycki did not establish the grounds needed to obtain an extension of time. Therefore, because Mr. Sieluzycki commenced this application after the six-month time limit set out in s. 5 (1) of the Judicial Review Procedure Act, RSO 1990, c J.1, it was too late and had to be dismissed.

[17] In all, the application was a frivolous attempt to continue multiple ill-suited regulatory proceedings brought by Mr. Sieluzycki as a result of the failed car sale that is the underlying basis of his complaint. First, he complained to the police. On being dissatisfied with their response, he brought a complaint against them. Then he brought unsuccessful freedom of information requests, human rights complaints, and he made inquiries of the Motor Vehicle Accident Claims Fund concerning Statutory Accident Benefits despite there not being any motor vehicle accident.

[18] Moreover, Mr. Sieluzycki displays traits of a vexatious litigant. He brings claims against an ever-expanding circle of respondents as each of his claims is denied. His causes of action have broadened from a claim for the loss of his car to the point where he now relies on fundamental constitutional documents like the Universal Declaration of Human Rights, the Charter of Rights, and the Canadian Bill of Rights all in relation to a used car sale.

[19] I accept that Mr. Sieluzycki feels very badly treated and has suffered distress as a result of his failed car sale or his inability to find an avenue for relief for his complaints. As I discussed in my prior endorsements, Mr. Sieluzycki’s Small Claims Court actions are the legal avenue most responsive to his alleged losses including his claims for mental distress suffered. From what I gleaned at a case conference, there may be a limitation period and other issues that may impede Mr. Sieluzycki’s claims in the Small Claims Court. That may explain at least partly why he is looking for other forums for relief and recompense.

[20] I also explained to Mr. Sieluzycki in prior endorsements that this application carries a costs risk far greater than the value of his car transaction. Mr. Sieluzycki has caused the two private respondents and numerous governmental entitles to incur significant legal fees responding to this proceeding. The proceeding was brought years too late for most of the decisions attacked by Mr. Sieluzycki and too early for other decisions that are not yet made. Moreover, there was no apparent merit to Mr. Sieluzycki’s requests for judicial review of the various underlying administrative decisions. As noted already, none of the proceedings leading to those decisions were appropriate or responsive to Mr. Sieluzycki’s complaints about his car sale losses.

[21] Mr. Sieluzycki had the right to make claims to seek compensation for losses he claims to have suffered. But the right to bring claims also carries with it the power to inflict legal obligations and costs on others. In the first instance, Mr. Sieluzycki has not been ordered to pay any costs. But he is not content with the outcomes he has received from expert tribunals and he seeks to continue in his legal efforts in this court.

[22] In my view, it is important to make a small costs award to show Mr. Sieluzycki that his infliction of legal expenditures on others has ramifications. Moreover, if unpaid, the costs orders will stand as a basis for procedural relief should Mr. Sieluzycki try again. The two respondents seek recovery of substantially all of their costs. However, as this is the first time a costs award has been levied against Mr. Sieluzycki, in my view it is fair, reasonable, and proportional that costs be awarded on a partial indemnity or even a nominal basis. Mr. Sieluzycki should understand however that if he continues to bring proceedings that lack a valid legal basis, he could be required in future to indemnify the respondents for the full legal costs incurred by them defending his claims.

[23] I order Mr. Sieluzycki to pay costs to Posner Metals Limited in the amount of $2,000 and to John Bear Buick Chevrolet GMC Cadillac Ltd. in the amount of $1,000.

Revocation of Mr. Sieluzycki’s Fee Waiver

[24] Section 4.10 of the Administration of Justice Act, RSO 1990, c A.6 says.

Revocation of fee waiver

4.10 (1) A certificate given to a person under section 4.3 or 4.4 respecting a court proceeding or enforcement in a proceeding may, despite anything to the contrary in those sections, be revoked by order of a judge, deputy judge or associate judge of the court in which the proceeding was commenced, if the judge, deputy judge or associate judge is of the opinion that the person’s actions in the proceeding or enforcement are frivolous, vexatious or otherwise an abuse of the process of the court.

Same

(2) A certificate given to a person under section 4.5 or 4.7 respecting the enforcement of an order may, despite anything to the contrary in those sections, be revoked by order of a judge, deputy judge or associate judge of the court in which the order was made or filed, as the case may be, if the judge, deputy judge or associate judge is of the opinion that the person’s actions in the enforcement are frivolous, vexatious or otherwise an abuse of the process of the court.

Submissions

(3) Before making an order under subsection (1) or (2), the judge, deputy judge or associate judge shall give the person an opportunity to make submissions.

Same

(4) Submissions shall be made in the manner and form specified by the judge, deputy judge or associate judge.

Restriction on further fee waivers

(5) In making an order under subsection (1) or (2), the judge, deputy judge or associate judge may make an order that the person may not, despite anything contrary in this Act, make any further requests for a fee waiver under this Act with respect to the same proceeding or any related proceeding or with respect to the same enforcement, without permission obtained in advance from a judge, deputy judge or associate judge, as applicable.

Decision final

(6) The decision of the judge, deputy judge or associate judge is final.

Rules of court and Statutory Powers Procedure Act do not apply

(7) The rules of court and the Statutory Powers Procedure Act do not apply to this section.

No Fee

(8) No fee is payable for anything done in connection with this section.

[25] A fee waiver is an administrative direction provided under the statute that entitles people to start and engage in court proceedings without paying the regular fees to do so. A fee waiver is obtained by a litigant delivering an affidavit attesting to his or her inability to afford court fees.

[26] Fee waivers are important devices to ensure access to justice so that everyone is able to have their rights adjudicated before His Majesty’s courts without regard to their economic status.

[27] However, there is no process for court staff to inquire into the truth or completeness of an affidavit delivered in support of a fee waiver. It is a process that is susceptible to abuse therefore. Moreover, it follows as surely as night follows day that vexatious litigants who bring multiple or repeated frivolous or vexatious lawsuits invariably do so freed from the obligation to pay court fees under fee waivers.

[28] Section 4.10 was added to the statute in 2020 as a mechanism to provide oversight and some measure of judicial control over fee waivers. The section applies only where a judicial officer forms the opinion that a person’s actions in a proceeding are frivolous, vexatious, or otherwise an abuse of the process of the court. Moreover, the person must be given notice and an opportunity to respond.

[29] Following the procedure set out in that statute, I gave notice to Mr. Sieluzycki that I was considering withdrawing his fee waiver and prohibiting further fee waivers in related matters. I invited him to make submissions.

[30] Mr. Sieluzycki did not provide submissions to support his continued entitlement to fee waivers. However, in his factum supporting the motion to set aside the September 3, 2024 order, Mr. Sieluzycki submits,

The Moving Party is of the opinion that undue prejudice occurs against the Moving Party when Justice Frederick Meyers prohibits the Moving Party from obtaining the fee waiver certificates since restricting the Moving Party’s eligibility for the fee waiver certificates is procedurally unfair towards the Moving Party in a way that causes the Moving Party to experience significant difficulties in exercising the Moving Party’s rights (i.e., the right to security of the person).

[31] I take this to mean that Mr. Sieluzycki believes the withdrawal of fee waivers would be unfair to him and a breach of his security of the person.

[32] In terms of procedural fairness, the statutory mechanism ensures that Mr. Sieluzycki has notice of the issue and a right to respond. There is no lack of procedural fairness.

[33] Substantively, I do not see how it can be either unfair or a breach of the right to security of the person to have one’s access to fee waivers limited after demonstrating abuse of the court’s processes. There is no right to bring frivolous or vexatious civil proceedings. Frivolous and vexatious proceedings are dismissed summarily. In fact, the problems posed by vexatious proceedings and vexatious litigants are so pervasive as to be the subject of numerous laws and rules designed to curtail them. (Consider, for example, the overlapping content of Rules 2.1, 21.01 (3)(d), and 25.11 (b) and (c) of the Rules of Civil Procedure.) To the same end, amendments to s. 140 of the Courts of Justice Act have just recently been proclaimed into force to decrease procedural constraints and costs involved to declare someone to be a vexatious litigant.

[34] Given that the court’s resources are very limited and constrained, efforts to limit abusive proceedings will enhance access to justice generally by freeing up scarce court resources to be available to parties with meritorious or at least non-frivolous issues. They also protect defendants from being vexed with unrecoverable costs responding to meritless proceedings.

[35] Furthermore, an order under s. 4.10 does not prevent access to justice. Rather, it deprives people who want to bring frivolous or vexatious lawsuits of the ability to do so without paying applicable court fees. But if a person who is subject to an order under s. 4.10 wishes to bring a proceeding that is not frivolous, vexatious, or an abuse of process, he or she may apply to a judge to obtain a fee waiver. If a proposed claim, or step in an existing claim, has some apparent merit, the hurdle of demonstrating the merit to a judge is not a high bar at all. So, a person of limited means will not lose access to justice at all for claims that are not frivolous, vexatious, or an abuse of process.

[36] A “frivolous” claim is one that lacks a legal basis. Currie v. Halton Regional Police Services Board, 2003 7815 (ON CA), at para. 14.

[37] A “vexatious” claim is one instituted with out reasonable grounds or is brought where it is obvious that it cannot succeed, i.e., to vex the defendants. Currie at para 15.

[38] A proceeding is an abuse of process when it is inconsistent with the objectives of public policy: Currie, at para. 16, relying on Canam Enterprises Inc. v. Coles, 2000 8514 (ON CA) at para. 31, rev’d on other grounds 2002 SCC 63. To quote the Court of Appeal at para. 55 of Canam,

The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute.

[39] Mr. Sieluzycki brings repeated and ever-broadening claims for the same underlying transaction. He has brought claims with no apparent merit on their faces. He does not accept failure. Rather, he tries again, or brings a new proceeding, and/or appeals.

[40] In my view, Mr. Sieluzycki’s application for judicial review is frivolous and vexatious. It had no merit and it was brought to challenge proceedings before tribunals that equally had no merit. Mr. Sieluzycki brought legal proceedings in the Small Claims Court arising out of his aborted his car sale transaction. But his efforts to expand the civil complaints into government incidents or matters of fundamental human rights was obviously not going to succeed.

[41] I have no idea whether Mr. Sieluzycki is bringing proceedings deliberately to leverage his chances of success by causing the private respondents costs and time, or whether he has just been misguided. Either way, in my judgment, he should not be entitled to continue to do so under fee waivers designed to enhance access to justice. His proceedings unfortunately do the opposite.

[42] I therefore revoke Mr. Sieluzycki’s fee waiver in this proceeding. In addition, I order that he is prohibited from making any further requests for a fee waiver with respect to this proceeding or any related proceeding without permission obtained in advance from a judge.

[43] Mr. Sieluzycki may make a motion for permission to obtain a waiver for a proposed future proceeding, or a step in an existing proceeding, in writing by Notice of Motion addressed to the attention of the Senior Regional Justice (or any judge as the RSJ may delegate) in the Region in which Mr. Sieluzycki proposes to seek a fee waiver. The motion may be made without notice to any responding party.

[44] Mr. Sieluzycki’s written, without notice motion in a proceeding, or in a proceeding to be commenced, shall be supported by an affidavit of no more than six pages in length setting out the reason(s) why Mr. Sieluzycki believes he should be permitted to obtain a fee waiver for the proposed proceeding or step. The affidavit shall include full particulars of Mr. Sieluzycki’s assets and liabilities, his annual projected revenue and expenses, and all other information required for the fee waiver sought under the Administration of Justice Act.

FL Myers J

Date: October 16, 2024