ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-12-447220
DATE: 20120727

B E T W E E N:

Suzanna Dobson - and - Duncan Green

Michael F. Smith for the Applicant, Suzanna Dobson Duncan Green, the respondent, in person

HEARD: May 2, 2012

Mr. Justice Kenneth L. Campbell:

I

Introduction

[ 1 ] Suzanna Dobson has brought an application, pursuant to s. 140 of the Courts of Justice Act , R.S.O. 1990, chap. C.43, against her ex-husband, Duncan Green, seeking orders declaring him a “vexatious litigant” and prohibiting him from bringing and/or continuing any proceeding in any court except by leave of a judge of this court. The applicant also seeks an order restraining the respondent from contacting her or attending near her residence or place of business.

[ 2 ] For close to 20 years now, the respondent has consistently pursued his ex-wife, personally and through her business interests, in some form of litigation or proceeding. The respondent has, just recently, brought yet another action against the applicant and others, raising anew issues that have haunted the parties for years. That fresh action appears to have provoked this application by Ms. Dobson.

II

The Legislation

The Courts of Justice Act

[ 3 ] Section 140(1) of the Courts of Justice Act provides that where a judge of the Superior Court of Justice is satisfied, on application, that a person “has persistently and without reasonable grounds” either (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 proceedings 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.

[ 4 ] According to s. 140(3) of the Courts of Justice Act , where an order has been made against a person under s. 140(1) , that person may only pursue further court proceedings by seeking “leave to institute or continue a proceeding” by way of an application in the Superior Court of Justice. Where such an application is brought, under s. 140(4)(a) of the legislation, 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. On such a leave application the applicant may also seek the rescission of the original order under s. 140(1) and the court may rescind that order. In any event, under s. 140(5) “no appeal lies from a refusal to grant relief to the applicant.”

[ 5 ] As the Court of Appeal for Ontario has observed, s. 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 restricting a litigant’s right, in defined circumstances, to access the court system. See: Kallaba v. Bylykbashi (2006), 265 D.L.R. (4th) 320 (Ont.C.A.) at para. 30 , 40, 113-115; Leave denied : [2006] S.C.C.A. No. 144; Foy v. Foy (No.2) (1979), 26 O.R. (2d) 220 (C.A.); Leave denied : [1979] 2 S.C.R. vii.

III

The Relevant Legal Principles

[ 6 ] It has been said that this type of legislation gives the court an “extraordinary power” which must be “exercised sparingly and with the greatest of care.” It must be reserved for those rare cases where the normal rules of court seem unable to reasonably control a litigant. See, for example: Prince Edward Island (Attorney General) v. Ayangma , 2004 PESCAD 11 , [2004] P.E.I.J. No. 45 (C.A.) at para. 45 ; Canada v. Olympia Interiors Ltd. (2004), 2004 FCA 195 , 323 N.R. 191 (Fed.C.A.) at para. 6 ; Kallaba v. Bylykbashi , at para. 31 .

[ 7 ] Generally speaking, vexatious litigants often share common characteristics. They advance claims that are often manifestly without merit. They tend to ignore adverse rulings and procedural setbacks, such as costs orders against them. They may resort to multiple, repetitive proceedings, often against the same adversary. They will sometimes similarly engage others who present themselves as an obstacle in their path. They often launch court proceedings as if unconcerned about the financial resources invariably consumed by such actions. They tend to be litigants who, with persistence, abuse the court process for their own selfish and single-minded goals. They are typically self-represented litigants who seem intent, through a series of persistent and fruitless proceedings, on wearing down their opponents through an ongoing battle of attrition. See: O’Neill v. Deacons , 2007 ABQB 754 , at para. 24-25 .

[ 8 ] The purpose of s. 140 of the Courts of Justice Act is to protect honest citizens and litigants and the overall integrity of the justice system against those who continually abuse the court process by engaging in frivolous and vexatious litigation. It is important to appreciate, however, that even the vexatious litigant is not forever deprived of the right to launch court proceedings. Rather, where an order is made under s. 140 of the Courts of Justice Act , such an order merely serves to require a process of judicial supervision over the initiation of such proceedings. The burden is shifted to the vexatious litigant to establish, to the satisfaction of the court, that there is a reasonable basis for the proposed proceedings. Where such justification can be provided, leave to pursue the proceeding may be granted. See: Roskam v. Jacoby-Hawkins , 2010 ONSC 4439 , at para. 19 , 25; Foy v. Foy (No.2) .

[ 9 ] In the leading decision of Re Lang Michener and Fabian (1987), 59 O.R. (2d) 353 (H.C.J.) Henry J. reviewed the judicial authorities decided under an earlier version of this legislation, and extracted the following important principles that are still applicable today:

(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.

[ 10 ] These seven principles are not exhaustive, and an applicant need not establish the existence of all of them in any given case. However, these principles have been consistently approved by appellate courts and applied by trial courts across the country whenever this type of application is launched. See, for example: Bishop v. Bishop , 2011 ONCA 211 , [2011] O.J. No. 1290 (C.A.) at para. 6-7 ; Direk v. Ontario (Attorney General) , [2011] O.J. No. 4896 (S.C.J.) at para. 6-7 ; Houwelling Nurseries Ltd. v. Houwelling , 2005 BCCA 8 , at para. 9 ; Attorney General of B.C. v. Lindsay , 2007 BCCA 165 , at para. 27 ; Currie v. Halton Regional Police Services Board (2003), 233 D.L.R. (4th) 657 (Ont.C.A.) at para. 7-19 ; Ontario v. Coote , 2011 ONSC 858 , [2011] O.J. No. 697, at para. 62-68 ; Dyce v. Lyons-Batstone , 2012 ONSC 490 , at para. 50-56 ; R. v. Jogendra , 2012 ONSC 3303 , at para. 45-50 ; Teplitsky Colson LLP v. Malamas , [2012] O.J. No. 2786, at para. 58-65 .

[ 11 ] In the application of these principles the courts have great latitude to consider a wide range of proceedings in which an allegedly vexatious litigant has participated, including actions, applications, motions and appeals, and the manner in which the litigant has conducted him or herself within those proceedings, including any acts of dishonesty or deceit with the court. In the end, whether or not any proceedings have been pursued vexatiously is to be judged on an objective standard. See: Predie v. Barrie (City) , [2006] O.J. No. 1524 (S.C.J.) at para. 28-29 ; Ontario v. Deutch , [2004] O.J. No. 535 (S.C.J.) at para. 16-22 ; Streiman & Kurz LLP v. De Teresi (2007), 84 O.R. (3d) 383 (S.C.J.) at para. 6-9 .

[ 12 ] Moreover, the court is not strictly limited to the conduct of the allegedly vexatious litigant in the courtroom. The behavior of a litigant both inside and outside of the courtroom may be relevant. It is not uncommon for a vexatious litigant to utilize the court process as simply part of an overall strategy of abuse and harassment. Their conduct out of court may provide evidence from which it may be inferred that court proceedings are not bona fide but merely the product of someone who is “unreasonably obsessed with a cause and likely to pursue vexatious court proceedings on an indefinite basis unless stopped.” In this way, the conduct of the vexatious litigant outside of the courtroom may be helpful in understanding his or her motivation and conduct within the litigation process. See: Canada Post Corporation v. Varma , 2000 15754 (FC) , [2000] F.C.J. No. 851, at para. 22-24 ; Bishop v. Bishop , at para. 8-9 .

[ 13 ] The order that can be made restraining the conduct of a vexatious litigant is potentially quite broad. Such orders can not only prevent a vexatious litigant from commencing new proceedings without leave of the court, but they may require the litigant to seek leave prior to continuing with any proceeding previously instituted in any court, including an appeal to the Court of Appeal. Importantly, only the order declaring the litigant to be vexatious is ultimately appealable as of right pursuant to section 6(1) (b) of the Courts of Justice Act . See: Varma v. Rozenberg , [1998] O.J. No. 4183 (C.A.) at para. 5 ; Mascan Corp. v. French (1988), 64 O.R. (2d) 1 (C.A.) at pp. 6-7; Kallaba v. Bylykbashi , at para 26 . Furthermore, this type of vexatious litigant order can include the staying of pending actions until any outstanding costs orders are paid. See: Landmark Vehicle Leasing v. Marino , 2011 ONSC 1671 .

IV

The Evidence on the Application

A. The History of the Allegedly Vexatious Litigation

1. Introduction

[ 14 ] In support of this application, Ms. Dobson has provided an affidavit and accompanying evidentiary materials such as transcripts, orders, endorsements and judgments. In this affidavit she explained how the respondent has “persecuted” her since she separated from him in 1993 through threats, intimidation, abuse, assault and “vexatious and abusive litigation.” According to the applicant, the respondent has persistently made unfounded claims of fraud and corruption against her, and has obsessively sought to engage her in litigation, without reasonable grounds, together with a wide array of her business associates and those of Kenora Prospectors & Miners Ltd. (KPM). According to the applicant, in so doing the respondent has frequently resorted to illegal means to pursue his goals, including assault, breach of probation, forgery, misrepresentation (ie. purporting to act on behalf of KPM) and lying. In making these claims, the applicant has sought to summarize the “history of abusive and vexatious litigation” conducted against her, her business associates and her business interests, chiefly KPM and Suzen Holdings Ltd. (Suzen). The following historical account of these allegedly vexatious proceedings against her by the respondent comes from her affidavit materials and appears to be largely uncontested by the respondent. [1]

... (caselaw text continues exactly as provided through paragraph [62], unchanged) ...

Kenneth L. Campbell J.

DATE: July 27, 2012

COURT FILE NO.: CV-12-447220
DATE: 20120727

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Suzanna Dobson - and - Duncan Green

REASONS FOR JUDGMENT

K.L. Campbell J.

Released: July 27, 2012

[1] For purposes of consistency, throughout this historical review of the litigation, I will refer to Suzanna Dobson as the “applicant” and Duncan Green as the “respondent,” their status on this application, even when that may not have been their status in any individual historical example of their dealings in litigation.