Court File and Parties

BARRIE COURT FILE NO.: 10-1393
DATE: 20120228
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: WENDY PATRICIA MURPHY, Plaintiff

AND:

NATIONAL BANK OF CANADA, Defendant

BEFORE: EBERHARD J.

COUNSEL:
no-one appeared for the Plaintiff
M. Hackl Counsel, for the Defendant

HEARD: February 27, 2012

ENDORSEMENT

1The Plaintiff did not appear today.

2The motion, brought by the Defendant, was peremptory on the Plaintiff.

3The determination whether to proceed in her absence is complicated by a February e-mail from the Court’s Trial Co-ordinator to the Plaintiff and Defendant that the judge assigned to hear the matter on February 27, 2012 was otherwise assigned and suggested a March 1, 2012 date:

From: Donnelly, Marianne (JUD)

Sent: February 15, 2012 4:52 PM

To: 'murphy.w.3@hotmail.com'; 'hackl@phmlaw.com'

Subject: Murphy v National Bank of Canada

Good afternoon Ms. Murphy and Mr. Hackl.

As you may recall at the last attendance before the court in Barrie on December 7 th , 2011, the Murphy v National Bank motion was adjourned to February 27, 2012 at 9:30.

Unfortunately, the Judge previously assigned to hear this motion is now no longer available and so we are suggesting the matter now be heard on Thursday, March 1, 2012 at 9:30 a.m.

Please confirm your availability for that day.

Thank you in advance,

Marianne Donnelly

Superior Court of Justice

Trial Coordinator

4The Plaintiff declined that date but did not participate in scheduling another.

From: wendy murphy [mailto:murphy.w.3@hotmail.com]

Sent: February 20, 2012 9:32 PM

To: Donnelly, Marianne (JUD)

Subject: Murphy vs. National Bank

Marianne Donnelly

Superior Court of Justice

Trial Coordinator

73 Mulcaster St.

Barrie, On.

L4M 3P2

I have received your e-mail in regards to the Judge set for trial, not being available for Feb.27,2012,and have notified my council the same. I am unfortunately unavailable Mar.1,2012. I will have my representative in the matter contact Mr. Hackl and confirm acceptable dates for all in this matter, and they will in turn contact you to set an acceptable trial date. Thank you for your e-mail,

Wendy Murphy

muprhy.w.3@hotmail.com 705-538-1080

5No “council” or representative contacted Mr. Hackl or the court.

6By the morning of February 23, 2012 the Plaintiff and Defendant were advised that a motions judge was available and the matter would proceed on February 27 th as originally scheduled.

From: Donnelly, Marianne (JUD)

Sent: February 23, 2012 9:34 AM

To: 'wendy murphy'; 'Michael Hackl'

Subject: RE: Murphy vs. National Bank

Good morning.

I am glad to say that it now appears that a Judge will become available for Monday after all. Your motion will now proceed on February 27 th at 9:30.

Sorry for any inconvenience this may have caused.

Marianne Donnelly

Superior Court of Justice

Trial Coordinator

7When the trial co-ordinator arrived in her office on Monday, February 27 th she found an e-mail from the Plaintiff sent at 5:35pm February 24, 2012, a Friday, after office hours, as follows:

From: wendy murphy [mailto:murphy.w.3@hotmail.com]

Sent: February 24, 2012 5:53 PM

To: Donnelly, Marianne (JUD)

Subject: Murphy vs. National Bank

Marianne Donnelly

Superior Court of Justice

Trial Coordinator

73 Mulcaster St.

Barrie ON

L4M 3P2

Marianne in regards to the judge now being available for Feb. 27, 2012, unfortunately when this date was changed I went out of town on an urgent personal matter and will not be back until March 9, 2012. At that time I will have a list of dates that all parties involved can that coordinate, and carry this matter out in a timely fashion. Thank you again

Wendy Murphy

8Despite my observation that this e-mail patently could not have been expected to be received before Monday office hours, I instructed the trial coordinator to telephone and e-mail the Plaintiff requiring her to call or e-mail the court by 11:00 a.m. There was no response.

9The full correspondence and reasons were reviewed in court and the e-mails made exhibits on the motion.

10In preparation for the motion I had read the material. The Plaintiff had filed nothing further since December 7, 2011 and the opportunity to do so had expired before any uncertainly about the date for hearing arose. The Plaintiff invokes counsel saying that such person is not available March 1, 2012 but never naming him to the court or opposing counsel.

11On the basis of the material, and without allowing the Defendant to address me on the point, I had a concern that the conduct and claim of the Plaintiff suggest the hallmarks of a vexatious litigant.

12I considered the factors observed by Henry J., in Re Lang Michener and Fabian , (1987) 1987 172 (ON SC) , 59 O.R. (2d) 353 at para.19, where he considered a number of judicial decisions and stated as follows:

From these decisions the following principles may be extracted:

(a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding;

(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;

(c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

(d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

(e) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action;

(f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious;

(g) the respondent's conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.

13Here, the mortgage action brought by the Defendant against the Plaintiff was completed by default judgment in July 2011, notice of eviction in August 2011 and actual eviction in September 2011. That action was neither appealed nor was there a motion to stay eviction nor a motion to set aside the judgment. The property was already sold before the fresh claim was brought by the former Defendant Mortgagor against the former Plaintiff Mortgagee. The claim is for $10,000,000.

14The conduct of the now Plaintiff, in failing to attend at a peremptory hearing would itself be sufficient to proceed in her absence but for the complication of the court’s notification of scheduling difficulties. However, I am persuaded by the conduct of the Plaintiff in response to that difficulty that the court has little responsibility for her failure to appear today.

15The case law has also evolved over the years so that courts may consider the behaviour of a litigant in determining whether restrictions should be imposed on a litigant who brings frivolous and vexatious claims.

16Experience over the years has alerted me to the dangers of bending rules over and over to accommodate claims for extravagant undifferentiated damages on the basis that there was unfair treatment in relation to a prior litigation before the court. Boswell J. in Roskam v. Jacoby-Hawkins commented:

25The control of vexatious proceedings is necessary to protect the integrity of the judicial system. The purpose of the section is to prevent people from abusing the system for improper purposes such as harassment or oppression: Dale Streiman & Kurz LLP v. De Teresi , [2007] O.J. No. 255 , at para. 7 . Accordingly, a litigant’s behaviour both inside and outside of the court is relevant: Canada Post Corporation v. Varma , 2000 15754 (FC) , [2000] F.C.J. No. 851 . It is not unheard of for a litigant to utilize the court’s processes as part of an overall strategy of harassment and abuse and the court must be vigilant to protect its process from being misused in that fashion.

17While I certainly could and would not, before considering submissions, form any opinion as to the historical conduct of the Plaintiff, the mere fact of leaving town without any discussion with opposing counsel or the trial co-ordinator and e-mailing she would not be attending the motion on the date originally fixed after office hours is at least potentially a cynical act to avoid the scheduled adjudication of the motion which seeks to end the litigation.

18I have a duty to the Administration of Justice to scrutinize unauthorized failures to attend and control the court’s own proceedings to avoid the waste of time and resources which I have many times seen to multiply.

19I therefore determined to hear the Defendant’s motion. I intend to adjudicate but make my ruling effective three weeks after the Plaintiff’s availability (according to her e-mail note). It will become effective unless, in those three weeks, the Plaintiff obtains leave by ex parte motion (without notice served on the Defendant) to return the Defendant’s motion before me for hearing of her argument and the Defendant’s reply. This leave motion may be placed before me or any judge of the Superior Court of Justice in Barrie, and granted on the basis that the judge is satisfied the “urgent personal matter” mentioned in her February 24, 2012 email has been demonstrated to exist and that it justifies failure to appear on the peremptory date or communicate with counsel or the trial coordinator as to an alternative date. The fact of her email after hours on Friday demonstrates that she has the means of communication.

20I now continue to the substance of the motion argued by the Defendant.

Statement of Claim Disclosing a Cause of Action

21For this argument I look only to the Statement of Claim to determine whether, if proven, the claims made support a cause of action known to law. I will summarize the claim as I read it:

22The facts plead assert accounting irregularities, the refusal of full payment tendered on the mortgage, and an agreement by the mortgagee to forbear from enforcement.

23The claim is framed in negligence by (a) failing to honour the forbearance agreement; (b-e) collection irregularities, poor and unresponsive service; (f) procedural failure to address the Plaintiff’s disabilities; (g) eviction in face of forbearance agreement; (h) falsely alleging non-payment when had possession of money orders and (i) collection regularities resulting in higher fees.

24The Statement of Claim cites legislation: the Charter , the Negligence Act and the Rules of Civil Procedure.

25The Statement of Claim claims damages for loss of chattels and a custom built home; personal and psychological injuries from stress and loss of rehabilitation equipment; and a resulting in a loss of lifestyle.

26While none of this appears to be negligence, I can discern in it an assertion that payment was actually made such that there was no default upon which Default Judgment could be granted and that there was a forbearance agreement which should have impacted the granting of Default Judgment. Although the claim for $10,000,000 is in no way connected to the losses alleged to have been experienced, the quantum does not in itself negate a claim that the eviction was based on a Default Judgment for non-payment when payment was made.

27This is put forward as a cause of action. It is, however, actually a defence to the mortgage action which is complete.

28This defence is dressed up with characterizations such as negligence or libel by the mortgagee in making false claims of non-payment. Nevertheless, the claims are, at their basic nature, assertions that judgment should not have been granted in the mortgage action.

29Assuming the assertions of payment and a forbearance agreement to be true, I must nevertheless find that they were the proper subject matter of the mortgage action. The assertions could have been raised at any number of stages in that mortgage action: by way of Statement of Defence, by way of motion to stay eviction, or by way of motion to set aside Default Judgment.

30Without referring to affidavit evidence, as I may not for this argument, it is clear that the Statement of Claim, while disclosing a claim based on payment and/or forbearance while quantum and irregularities were addressed, does not disclose a new cause of action. It raises rather assertions that could and should have been raised in the context of the mortgagee’s claim to enforce a mortgage based on non-payment with no process in place to prevent proceeding to Default Judgment.

31The principles of Res Judicata are cited in Reddy v. Oshawa Flying Club 1992 CarswellOnt 349, 11 C.P.C. (3d) 154 para 7

The doctrine of cause of action estoppel is based on the premise that, where the legal rights or liabilities of the parties have been determined in a prior action, they should not be re-litigated. Cause of action estoppel applies not only to points on which the court has pronounced but to every point which properly belonged to the subject of the litigation (67 E.R313. 3 Hare 100 (Ch.D.), at p. 381 [E.R.] ).

32The significance of Res Judicata in a Default Judgment is not diminished even though the issues were not raised in the action because no defence was filed, the basic requirement of a Default Judgment:

The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties exercising reasonable diligence might have brought forward at the trial. ( Reddy para 8 citing Upper v Upper 1932 111 (ON CA) , [1933]O.R. 1.

Abuse of Process

33Even if it could be said that by characterizing the conduct differently the mortgagors had expanded the issues beyond the bounds of Res Judicata , the raising of the issues may amount to frivolous, vexatious or abuse of the process of the court.

34In Canada Trustco Mortgage Co. v. McLean [1983] O.J. No. 269 Potts J considered relief sought after Default Judgment when the mortgagors resisted a writ of possession being issued:

A defendant who has been served with the writ of summons containing the plaintiffs claim for possession stands in a wholly different position, however. He has already been given an opportunity to have his rights determined and an opportunity to vacate.

35The bringing of a fresh action against a mortgagee following unsuccessful appeal of a judgment in a mortgage action was addressed in Shrivastava v. Bank of Nova Scotia 2011 CarswellOnt 7131, 2011 ONSC 3994 :

12 The plaintiffs’ fundamental complaint is that their home has been taken from them as a result of a criminal conspiracy on the part of the defendants, allegedly involving Canada Revenue Agency. They claim that the mortgage to National Trust was not in default or that the default was minor, and that the transfer of the mortgage by National Trust to the other defendants (whom they describe as a “group of thugs”) was unlawful and invalid. The claim includes a long list of complaints against BNS, including allegations of racist lending practices, discrimination, hate crimes. Bad-faith conduct, deceit, conspiracy, unjust enrichment, receipt of money under false pretences, breach of contract. Breach of trust, crimes against humanity, deceptions through false affidavit, abuse of process, conversion, extortion, blackmail, fraud, forgery, breach of covenants and violation of banking law.

13 The loss of the plaintiffs’ home, unfortunate as it is, is the result of decisions of this Court in two legal proceedings. ….

14 Any objections that the plaintiffs may have had about the validity of the mortgage or the actions of the mortgagee should have been raised in the action brought by National Trust. This is a classic attempt to re-litigate a case that has already been decided by a court of competent jurisdiction — as such, it is an abuse of process and is frivolous and vexatious: Currie v. Halton (Region) Police Services Board (2003). 179 0.A.C.67. [2003] O.J. No. 4526 (C.A.) ; see also Re. (19871 59 O.R. ad) 353. 1987 172 (ON SC) , [1987] O.J. No. 355 (H.C.) at para. 19 ; Reddy v. Oshawa Flying Club ,\mi\ O.J-No. 1337. II C.P.C. (3d) 154 (Gen. Div.).

15 Moreover, many of the allegations made in the previous proceedings are being repeated in this action : Donmor Industries Ltd v. Kremlin Canada Inc . (No. 1) (1991). 1991 7360 (ON SC) , 6 O.R. (3d) 501. [1991] O.J. No. 3666 (Gen. Div.) at para. 19.

36When considering this ground for the Defendant’s motion I may consider the affidavit material. I did so firstly to determine what the Plaintiff mortgagor says happened. The Plaintiff’s “brother” David “Tucker” Beeston deposes that it was he who at all times dealt with the mortgagees’ representatives. A Mr. “Tucker” is sometimes referred to. Perhaps it is the same individual.

37For all the dispute about discussions, forbearance or surprise upon notice of eviction, ignoring for the purpose of this argument the correspondence contrary to these assertions (which appears to have repeatedly emphasized that there were identified errors, that the mortgagee intended to proceed to judgment and urging the mortgagor to consult legal counsel,) there can be no doubt that by August 2011 the mortgagor was aware of the intention to evict and in September she was evicted. A lawyer, whose name does appear in the Law Society register of practising lawyers, did contact the mortgagee, but there was no follow up. The opportunity to raise the defences of payment and a forbearance agreement was in the context of those proceedings. Lack of notice cannot be claimed by that point.

38It is abuse of process to repackage the defences to the issues that gave rise to a judgment now final and enforced, and to claim damages for losses arising from what, in the context of the mortgage action, the mortgagee was entitled to do unless issues were raised to the court to dispute that right

39I find that the Plaintiff does not raise a new cause of action and it is abuse of process to allow a second kick at the same can.

40It is not necessary for me to proceed to a consideration of Summary Judgment. However, were I to do so I can identify that there are credibility issues as between the assertions of Mr. Beeston and the assertions of Mr. Myers and Mr. Yaccarinni. In the recent development of the law relating to Summary Judgment I have expanded scope to consider whether a trial is necessary to adjudicate the issues about which the credibility issues linger. The best foot forward criteria for resisting Summary Judgment would, if it were necessary for me to consider the matter, create challenges for the Plaintiff.

41Order to go, effective March 30, 2012, dismissing the Statement of Claim for failure to disclose a cause of action and as abuse of process unless, before March 30, 2012, the Plaintiff obtains leave to appear before me to advance her argument based on the materials now before the court. If no leave is granted by March 30, 2012 this order becomes final and may be issued and entered without further process required.

42Costs for December 7, 2011 were fixed by Healey J. at $800. I find, as she invited me to determine, that these costs are payable by the Plaintiff to the Defendant.

43Further, I have a cost memorandum from the Defendant’s counsel claiming $21,916 in partial indemnity and $31,215.50 in substantial indemnity including today (the first return of the motion having been addressed by Healey J.). I fix costs at partial indemnity noting that the extravagant quantum of the claim, the allegations of malicious conduct and the procedural conduct may have attracted an enhanced rate.

44Costs fixed, in total including December 7, 2011 at $22,000.