ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-11-432893
DATE: 20120611

BETWEEN:

Her Majesty the Queen in Right of Ontario Applicant – and – Regis Jogendra Respondent

Glenn Frelick and Barbara Lynch, for the Applicant
Regis Jogendra, In Person

HEARD: March 22 and 23, 2012

Hainey J.

Overview

1Regis Jogendra is a former Justice of the Peace who has instituted a myriad of civil, administrative, regulatory and private criminal proceedings against the Crown and its employees, judicial officials and other adjudicators, and many of the lawyers who represent them.

2The numerous proceedings that have been brought by Mr. Jogendra arise from the Ministry of the Attorney General’s refusal to reimburse him for legal fees he incurred defending himself against several sexual assault charges that arose while he was carrying out his duties as a Justice of the Peace.

3The Applicant seeks orders declaring Mr. Jogendra a vexatious litigant, and prohibiting him from instituting or continuing any civil or private criminal proceedings without obtaining leave of a judge of this court.

Facts

4Mr. Jogendra was appointed as a part-time Justice of the Peace for the Province of Ontario in July 1993. In April 1999, he was charged with a number of counts of sexual assault involving ten women, all of whom came into contact with him in his capacity as a Justice of the Peace.

5The sexual assault charges formed the basis of a complaint to the Justice of the Peace Review Council in November 2000. Mr. Jogendra’s legal counsel and the Crown agreed to a resolution of the criminal charges and on May 26, 2003, Mr. Jogendra wrote letters to the Registrar of the Justice of the Peace Review Council and Associate Chief Justice Donald Ebbs in which he stated that he did not dispute the contents of the complaint and he offered his retirement as a Justice of the Peace. Shortly thereafter, on June 9, 2003, the criminal charges against him were withdrawn by the Crown, who cited his resignation as a Justice of the Peace and his willingness not to contest the complaint to the Justice of the Peace Review Council as the reasons for the withdrawal of the charges.

6Mr. Jogendra twice requested reimbursement for the legal fees he incurred defending the criminal charges against him. Initially, before the charges were withdrawn, his legal counsel wrote to then Associate Chief Justice (Ontario Court) Marietta Roberts in June 1999 requesting reimbursement. He was advised that his request should be directed to the Ministry of the Attorney General.

7In July 2006, three years after the charges had been withdrawn, his new legal counsel wrote to the Ministry of the Attorney General seeking reimbursement for his legal defence costs of $84,813.76.

8Kenneth Campbell, who was then the Director of the Crown Law Office – Criminal, replied on behalf of the Ministry on July 28, 2006 stating that the Ministry would not reimburse Mr. Jogendra for his legal fees and that he was unaware of any legal obligation to do so. In subsequent correspondence, Mr. Campbell disputed Mr. Jogendra’s claim that the doctrine of judicial immunity could form the basis of his claim for reimbursement because the criminal conduct alleged against him was outside the scope of his duties as a Justice of the Peace. Mr. Campbell’s refusal, on behalf of the Ministry of the Attorney General, to reimburse him caused Mr. Jogendra to institute an extensive series of administrative, civil and private criminal proceedings.

Administrative Proceedings

9In March 2007, Mr. Jogendra made a complaint to the Ontario Ombudsman against the Ministry of the Attorney General and Mr. Campbell concerning the denial of his claim for reimbursement of his legal fees. On June 7, 2007, Ms. Angela Alibertis, an Early Resolution Officer with the Ombudsman’s Office, wrote to him advising that the Ombudsman would not pursue any further review of his complaint. She cited information received from Mr. Campbell that Mr. Jogendra had agreed to a resolution with the Crown pursuant to which the criminal charges against him were withdrawn and he had resigned as a Justice of the Peace.

10In March 2007, Mr. Jogendra also filed a human rights complaint against Her Majesty the Queen in Right of Ontario, Michael Bryant, the Attorney General of Ontario at the time, Chief Justice Brian Lennox, the then Chief Justice of the Ontario Court of Justice and Associate Chief Justice Donald Ebbs, the Associate Chief Justice of the Ontario Court of Justice at the time. In his complaint he alleged discrimination on the grounds of ancestry, colour, ethnic origin, place of origin and race because he was not assigned to full-time presiding duties as a Justice of the Peace. He claimed retroactive salary reimbursement and reinstatement as a Justice of the Peace.

11Mr. Jogendra then filed a human rights complaint against Mr. Campbell, in April 2007. In this complaint he alleged that the Ministry’s refusal to reimburse him for his legal fees was discrimination with respect to his employment based on ancestry, colour, ethnic origin, place of origin and race.

12Neither of Mr. Jogendra’s complaints to the Human Rights Commission was heard because they were found to be vexatious and to have been made in bad faith and outside the prescribed time limit. In July 2008, Mr. Jogendra abandoned his complaints to the Human Rights Commission but re-filed them with the Human Rights Tribunal of Ontario. On March 19, 2009, both complaints were dismissed. The Tribunal’s Vice-Chair, David Muir, referred to his claim for reimbursement as “preposterous”. He also denied Mr. Jogendra’s request for reconsideration.

13In March 2010, Mr. Jogendra filed a third human rights complaint against the Human Rights Tribunal and Vice-Chair David Muir alleging that his decision to dismiss his complaint was discriminatory on the grounds of ancestry, colour, ethnic origin and race. On February 15, 2011, the Tribunal dismissed this complaint and concluded that it “undeniably constitutes an abuse of process”.

Small Claims Court Actions

14Mr. Jogendra commenced two Small Claims Court actions in February 2008 against the Office of the Ombudsman’s employees, Angela Alibertis and Tim Arkell, for failing to intervene in respect of his reimbursement claim. In the claim he alleged negligence, professional malpractice, and that they had acted in bad faith and without authority by failing or refusing to exercise their authority under the Ombudsman Act.

15These actions remained dormant from October 2008 to January 2011 due to Mr. Jogendra’s failure to pay a costs order. When he finally paid the costs order, the actions were revived but a mistrial was declared in August 2011 and the actions have not proceeded further.

16In April 2008 he commenced a Small Claims Court action against Mr. Campbell for failing to approve his reimbursement request. Mr. Jogendra claimed negligence, professional malpractice, failure to pay an unpaid account, abuse of authority and discrimination under the Charter of Rights and Freedoms.

17The action against Mr. Campbell was dismissed on its merits by Deputy Judge Gerard Levesque on January 14, 2009, who held that it was barred by the Limitations Act, 2002 and was also an abuse of process. Mr. Jogendra attempted to set aside this order, but his motion was denied on February 23, 2010 by Deputy Judge Winer. He appealed from the orders of Deputy Judge Levesque and Deputy Judge Winer to the Divisional Court, and Ferrier J. dismissed his appeals on January 17, 2011, and held that “Clearly this action is an abuse of process and is frivolous and vexatious. The matters have been raised twice before in earlier proceedings before the Human Rights Commission. None of the claims have any legal basis or merit”. On May 30, 2011, the Divisional Court dismissed Mr. Jogendra’s “motion for reconsideration” of Justice Ferrier’s decision and fixed costs against him in the amount of $1,500.

Private Criminal Proceedings

18Mr. Jogendra also commenced a series of private criminal proceedings against several of the individuals involved in his unsuccessful reimbursement claim.

19On November 3, 2008, he appeared before a Justice of the Peace and swore three informations under the Criminal Code. The first two were against Amanjit Brar and Tamara Haurstock, who had acted as legal counsel for Ombudsman employees Angela Alibertis and Tim Arkell in the Small Claims Court actions. Mr. Jogendra alleged that they willfully attempted to obstruct the course of justice in a judicial proceeding and made false statements in an affidavit contrary to the Criminal Code. The third information was against Christopher Thompson, who represented Mr. Campbell in his Small Claims Court action. Mr. Jogendra alleged that Mr. Thompson violated the Criminal Code by making a false affidavit and willfully attempting to obstruct the course of justice by swearing that Mr. Jogendra had resigned when he had, in fact, retired.

20In the information against Ms. Haurstock, Mr. Jogendra alleged that she had misrepresented in an affidavit that her office was unaware that Mr. Jogendra had commenced a civil action against the Ministry, and that no trial date had been set in the actions against Ms. Alibertis and Mr. Arkell, when a trial date had been set shortly before her affidavit was sworn.

21The information sworn against Mr. Brar alleged that he had attempted to obstruct the course of justice by encouraging Ms. Haurstock to swear the false affidavit and by commissioning it, knowing of its inaccuracies.

22On December 1, 2008, a pre-enquete hearing was held before a Justice of the Peace pursuant to section 507.1 of the Criminal Code to enable Mr. Jogendra to establish a prima facie case to substantiate the charges against Ms. Haurstock, Mr. Brar and Mr. Thompson. On January 16, 2009, the court refused to issue process in respect of the charges.

23On September 23, 2009, Mr. Jogendra swore an information alleging that Paul Stern, legal counsel to former Associate Chief Justice Donald Ebbs, willfully attempted to obstruct justice. On November 10, 2009, Justice of the Peace Foulds presided over the pre-enquete hearing and refused to issue process. He described the evidence relied upon by Mr. Jogendra as “lacking in candour”. On April 9, 2010, Mr. Jogendra attempted to revive his information against Mr. Stern, however, Justice of the Peace McCoy advised him that he could not do so because process had not been issued on November 10, 2009.

24On September 25, 2009, Mr. Jogendra appeared before a Justice of the Peace and attempted a second time to have criminal process issued against Ms. Haurstock and Mr. Brar on the same grounds. On November 6, 2009, Justice of the Peace Nestico refused to issue process.

25On September 25, 2009, Mr. Jogendra appeared before a Justice of the Peace and swore an information against Mr. Campbell alleging that he had attempted to obstruct justice in a judicial proceeding by making a false statement to the court. He alleged that Mr. Campbell had misrepresented facts and misled the Ombudsman’s Office in connection with its investigation of his complaint. Following a pre-enquete hearing, Justice of the Peace Nestico refused to issue process on November 6, 2009. However, on September 23, 2009, Mr. Jogendra had also sworn an information against Mr. Campbell in a different courthouse alleging the same thing. On November 10, 2009, following another pre-enquete hearing, Justice of the Peace Foulds refused to issue process. On April 9, 2010, Mr. Jogendra again attempted to revive his previously sworn information against Mr. Campbell, however, Justice of the Peace McCoy advised him that he could not do so because process had not been issued on November 10, 2009.

26On November 6, 2009, Mr. Jogendra swore an information against Alan Mintz, a judicial official in the Ministry of the Attorney General, alleging that he obstructed justice by trying to influence the fair hearing of a motion in Small Claims Court and by altering the transcript of court proceedings. A pre-enquete hearing was held on December 11, 2009. On January 8, 2010, Justice of the Peace Burbin refused to issue process and held that Mr. Jogendra’s complaint against Mr. Mintz was “spurious in the sense that it is not genuine and that it is vexatious and frivolous”.

27On November 10, 2009, Mr. Jogendra again attempted to have process issued against Mr. Thompson and, following another pre-enquete hearing, the presiding Justice of the Peace refused to issue process. On April 10, 2010, Mr. Jogendra made a third attempt to have criminal process issued against Mr. Thompson and again, following another pre-enquete hearing, process was not issued.

28On March 15, 2010, Mr. Jogendra swore an information against Tom Foulds, a judicial official with the Ministry of the Attorney General, alleging that he had attempted to obstruct justice during a pre-enquete hearing. The Crown stayed the matter at a pre-enquete hearing held on April 9, 2010.

29On October 6, 2010, Mr. Jogendra swore an information against Glenn Frelick, legal counsel for David Muir, the Vice-Chair of the Human Rights Commission and counsel for the Applicant on the application before me, alleging that he had obstructed justice by swearing a false affidavit. Following a pre-enquete hearing held on November 8, 2010, Justice of the Peace Malik refused to issue process.

Law Society Complaints

30Mr. Jogendra has made a number of complaints of professional misconduct to the Law Society of Upper Canada against opposing counsel. In January 2009, he complained to the Law Society about Mr. Campbell alleging that he had misled the Small Claims Court and the Human Rights Tribunal by stating that Mr. Jogendra had “resigned” as a Justice of the Peace in exchange for the withdrawal of the criminal charges against him. In December 2009, the Law Society concluded that the evidence did not support further regulatory proceedings and closed its file.

31In January 2011, Mr. Jogendra complained to the Law Society about Rheema Khawja and Blair Trudell, former legal counsel for the Human Rights Tribunal. On March 1, 2011, the Law Society concluded that the evidence did not support further regulatory proceedings and closed its file.

32On January 25, 2011, Mr. Jogendra complained that Judie Im, Crown counsel, knowingly deceived the court in her factum filed in response to his appeals from the dismissal of his Small Claims Court claim against Mr. Campbell. On March 31, 2011, the Law Society dismissed his complaint citing the fact that the Divisional Court had made findings that were “diametrically opposed” to his allegations against Ms. Im.

Superior Court Application

33On May 31, 2010, Mr. Jogendra commenced an ex parte application under section 16 of the Public Officers Act in the Superior Court of Justice for an order appointing a “disinterested person” to adjudicate the human rights complaint he had made against the Human Rights Tribunal and its Vice-Chair, David Muir.

34On June 14, 2010, Mr. Jogendra made an ex parte motion for an order on the merits of his application. Himel J. dismissed the motion, in part, because the Tribunal had not yet determined whether it would hear his third human rights complaint. Despite Justice Himel’s order and the fact the Tribunal had made no determination, Mr. Jogendra served the Tribunal and Mr. Muir with his section 16 application materials returnable in Motion Scheduling Court on July 30, 2010. The Tribunal’s legal counsel, Rheema Khawja, attended on that date and Moore J. granted her request for an adjournment to set a date for Mr. Jogendra’s section 16 application.

35Himel J. made a procedural order on August 13, 2010 that included a timetable for steps leading up to a full-day hearing of his section 16 application and cross-motions brought by the Tribunal and Mr. Muir to dismiss the application.

36Mr. Jogendra then brought a motion to set aside Justice Himel’s procedural order and served the Tribunal with a summons for Ms. Khawja to attend the hearing to give evidence. This motion was dismissed by Corrick J. the following day, on September 28, 2010. Justice Corrick held that Mr. Jogendra had failed to comply with the Rules of Civil Procedure and ordered that he pay costs of $6,000 to the Tribunal and $2,000 to Mr. Muir.

37Although Mr. Jogendra commenced a motion for leave to appeal Justice Corrick’s order, he did not pursue it. On June 1, 2011, his section 16 application was dismissed by Grace J., who ordered him to pay Mr. Muir costs of $3,000.

38In response, Mr. Jogendra filed a notice of motion in the Divisional Court on July 4, 2011 seeking to set aside Justice Grace’s order that he tried to alter without notice to the other parties.

39Mr. Jogendra then appealed Justice Grace’s order to the Ontario Court of Appeal. He included several improper materials in his Appeal Book, which had to be corrected by the Tribunal’s legal counsel. His appeal was dismissed by the Court of Appeal on February 2, 2012.

Failure to Pay Costs Awards

40Mr. Jogendra has failed to pay most of the costs awards that have been made against him throughout the course of his litigation related to his reimbursement claim. The outstanding costs awards total $18,960. They are described below.

• He remains liable to Mr. Campbell for three costs awards: Deputy Judge Winer’s order of February 23, 2010 in the amount of $200, Justice Ferrier’s order of January 17, 2011 in the amount of $2,260, and the Divisional Court’s order of May 30, 2011 in the amount of $1,500.

• He remains liable to Mr. Muir for three costs awards: Justice Corrick’s order of December 21, 2010 in the amount of $2,000, Justice Grace’s order of June 1, 2011 in the amount of $3,000 and the Ontario Court of Appeal’s order of February 2, 2012 in the amount of $1,500.

• He remains liable to the Human Rights Tribunal of Ontario for two costs awards: Justice Corrick’s order of December 21, 2010 in the amount of $6,000 and the Ontario Court of Appeal’s order of February 2, 2012 in the amount of $2,500.

Issues

41The following issues must be determined:

1. Should Mr. Jogendra be declared a vexatious litigant pursuant to s. 140 (1) of the Courts of Justice Act?

2. Should an order be made requiring Mr. Jogendra to obtain leave of a judge of the Superior Court of Justice prior to instituting or continuing any civil proceedings in Ontario?

3. Should an order be made requiring Mr. Jogendra to obtain leave of a judge of the Superior Court of Justice prior to instituting any private criminal proceedings in Ontario?

Issue 1 – Should Mr. Jogendra be declared a vexatious litigant?

Position of the Parties

42The Applicant argues that Mr. Jogendra has engaged in vexatious abuse of the civil and criminal courts within the meaning of section 140 of the Courts of Justice Act. His civil, administrative and criminal proceedings have all been found to be without merit and he has waged an unreasonable legal and procedural vendetta against the Ministry of the Attorney General, Mr. Campbell and every other decision maker and legal counsel who has taken an adverse position or made an adverse ruling against him. The Applicant submits that Mr. Jogendra’s conduct bears all of the hallmarks of a vexatious litigant and that unless there is an order made under section 140 of the Courts of Justice Act he will continue his vexatious and abusive conduct.

43The Applicant further submits that all of the proceedings commenced by Mr. Jogendra, including his civil, criminal, administrative and regulatory complaints should be taken into account in determining whether he should be declared a vexatious litigant. In support of this position the Applicant relies upon the decision of the Ontario Court of Appeal in Bishop v. Bishop, 2011 ONCA 211, [2011] O.J. No. 1290 (C.A.), (leave to appeal to S.C.C. refused [2011] S.C.C.A. No. 239). It is submitted by the Applicant that if Mr. Jogendra’s conduct in all of these proceedings is considered, it is clear that he should be declared a vexatious litigant.

44Mr. Jogendra, who is self-represented, submits that the Superior Court lacks jurisdiction to make the order sought because it would affect his rights under the Canadian Charter of Rights and Freedoms. Further, he submits that he is not a vexatious litigant. He also argues that the term “proceeding” in section 140 (1) of the Courts of Justice Act does not include administrative and regulatory proceedings or private criminal proceedings. He also submits that I should not consider his unpaid costs awards in determining whether he should be declared a vexatious litigant.

Analysis

45Sections 140 (1) of the Courts of Justice Act gives the Superior Court of Justice statutory authority to make a vexatious litigant order. It provides as follows:

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.

46According to the Ontario Court of Appeal, section 140 of the Courts of Justice Act codifies the inherent jurisdiction of the Superior Court of Justice to control its own process and to prevent abuses of that process by authorizing the court to restrict a litigant’s right to access the courts: Kallaba v. Bylykbashi (2006), 265 D.L.R. (4th) 320 (Ont. C.A.) at para. 31, (leave to appeal to S.C.C. refused). Accordingly, I reject Mr. Jogendra’s submission that this court lacks jurisdiction to make a vexatious litigant order against him.

47I agree with the Applicant’s submission that I am entitled to consider Mr. Jogendra’s conduct in respect of the civil, administrative, regulatory and private criminal proceedings in determining whether he is a vexatious litigant within the meaning of section 140 of the Courts of Justice Act. The Ontario Court of Appeal made this clear in the Bishop case in which it upheld the motion judge’s decision to take into account numerous non-judicial proceedings in determining that the appellant was a vexatious litigant. In its Endorsement the court cited with approval the principle enunciated by Dawson J. in Canada Post Corp. v. Varma that a respondent’s behavior in and out of the court is relevant to a determination of whether a litigant’s behavior is vexatious.

48Accordingly, I must consider all of the proceedings that have been brought by Mr. Jogendra in response to the Ministry’s denial of his claim to be reimbursed for his legal fees in order to determine whether he has persistently and without reasonable grounds instituted vexatious proceedings in any court within the meaning of section 140 of the Courts of Justice Act.

49In Lang Michener Lash Johnston v. Fabian, Henry J. identified the following characteristics of vexatious proceedings:

(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; and

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

50In order to declare Mr. Jogendra a vexatious litigant I must be satisfied that he has “persistently and without reasonable grounds, instituted vexatious proceedings or conducted proceedings in a vexatious manner”.

51Since being advised by Mr. Campbell in 2006 that the Ministry would not reimburse him for his legal fees, Mr. Jogendra has instituted a myriad of proceedings that all bear the hallmark characteristics of the proceedings of a vexatious litigant.

52Further, Mr. Jogendra’s complaints and civil and criminal proceedings against Ms. Alibertis and Mr. Arkell, both of whom made adverse decisions against him, demonstrate the characteristics of a vexatious litigant.

53Mr. Jogendra’s propensity to take proceedings against lawyers who acted against him such as Mr. Brar, Ms. Haurstock, Mr. Thompson and Mr. Stern makes it clear that these proceedings were not commenced for the assertion of legitimate rights, but for improper purposes.

54Mr. Jogendra’s efforts to lay private criminal charges against a total of eight different individuals underscores the persistent and unreasonable nature of his behaviour.

55Mr. Jogendra’s litany of unreasonable complaints, civil actions and private criminal proceedings satisfies most, if not all, of the criteria to be applied in determining whether someone is a vexatious litigant.

Conclusion

56On the record before me, I find that Mr. Jogendra has persistently commenced unreasonable proceedings, has made unreasonable formal complaints against many of the decision makers and legal counsel involved in these proceedings and has failed to pay costs awarded against him. These are the hallmarks of a vexatious litigant. I, therefore, find Mr. Jogendra to be a vexatious litigant pursuant to section 140 (1) of the Courts of Justice Act.

Issue 2 - Leave requirement for civil proceedings

57The Applicant submits that if I find Mr. Jogendra to be a vexatious litigant, I should make an order that he must obtain leave of this court before instituting or continuing any civil proceedings in any court.

58Mr. Jogendra submits that such an order would affect his Charter rights.

59I reject this submission and find that such an order is necessary to prevent continued vexatious conduct.

60I therefore order that Mr. Jogendra obtain leave of a judge of the Superior Court of Justice prior to instituting or continuing any civil proceedings in any court.

Issue 3 - Leave requirement for private criminal proceedings

61The Applicant seeks an order prohibiting Mr. Jogendra from initiating private criminal prosecutions except with leave of the Superior Court.

62The Applicant relies on inherent jurisdiction.

63Mr. Jogendra submits the court lacks jurisdiction to impose such a requirement.

64I agree that his prior private criminal prosecutions were vexatious and without merit.

65However, the statutory pre‑enquete process under section 507.1 of the Criminal Code already provides protection against abusive private prosecutions.

66The existing process worked effectively in this case.

67I therefore see no compelling reason to impose an additional leave requirement.

Conclusion

68The request to prohibit the respondent from initiating private criminal prosecutions without leave is dismissed.

Costs

69The Applicant was substantially successful on the application and is entitled to costs on a partial indemnity basis. Costs are fixed in the amount of $10,000 payable by Mr. Jogendra within 30 days.