SUPERIOR COURT OF JUSTICE - ONTARIO

BRACEBRIDGE COURT FILE NO.: CV-12-00000092-00
DATE: 20120924

RE: THE CORPORATION OF THE TOWN OF GRAVENHURST, Applicant

AND:

DEBORAH STEPHENSON and STEPHEN WOODROW, Respondents

BEFORE: THE HON. MADAM JUSTICE S.E. HEALEY

COUNSEL:
M. Miller, for the Applicant/Moving Party
Respondents Self Represented

HEARD: September 17, 2012

ENDORSEMENT

Overview

[ 1 ] This is a motion by the Corporation of the Town of Gravenhurst (the “Town”) pursuant to s. 140(1) of the Courts of Justice Act , R.S.O. 1990, c.. C.43, as amended, to seek a declaration that the respondents have persistently and without reasonable grounds, instituted frivolous and vexatious proceedings and conducted those proceedings in a frivolous and vexatious manner. In the event of such finding, the Town seeks ancillary orders that would prevent the respondents from having the unfettered right to litigate within any court governed by the Courts of Justice Act.

Background

[ 2 ] The respondents have commenced three actions against the Town within the span of 29 months. These claims were, respectively, court file numbers CV-141-09-00, CV-10-77, and CV-12-9-00. They will hereafter be referred to as the first action, the second action and the third action.

[ 3 ] The background to that litigation has been comprehensively described in previous endorsements of this court and will not be repeated here. [1]

[ 4 ] In simplest terms, the procedural steps taken by the respondents have been as follows: The first action was dismissed on a motion for summary judgment as it raised no genuine issue requiring a trial. [2] An appeal of that decision was abandoned. A motion was brought pursuant to Rule 59.06(2)(c) of the Rules , seeking to have the court set aside the summary judgment decision. That motion was dismissed. [3] The respondents appealed, but failed to perfect their appeal in time. They brought a motion to extend the time to perfect their appeal, which was denied. [4]

[ 5 ] The respondents pursued the second action, but the Town brought a motion for summary judgment. It was granted on the grounds of res judicata and that no triable issue was found to exist on the claims advanced in the second action, including a damage claim and rescission of sums levied against the respondents’ municipal tax account. [5] In the context of the second action the respondents brought a motion requesting that the action be transferred to Toronto and to enjoin the Town from proceeding with a tax sale, but Eberhard J.’s decision to grant summary judgment rendered that motion moot. The respondents appealed the order dismissing the second claim. Again they failed to perfect the appeal in time, and brought a motion seeking an extension of the time within which to perfect their appeal. Additional orders were sought from the Court of Appeal at that time: an order compelling the Town to complete production and disclosure of documents pursuant to Rule 30, and order permitting the respondents to complete the examination of witnesses prior to the perfection of the appeal, and an order permitting them to bring new evidence before the Court of Appeal. Their motion was dismissed by Sharpe J.A. [6] In his endorsement he noted that the Eberhard J. had carefully reviewed the entire course of the litigation and explained why the claim was barred by res judicata . He wrote: "I see no error in her reasons and conclude that this appeal has no prospect of success."

[ 6 ] The third action was commenced on January 20, 2012. The Town brought a motion for summary judgment originally returnable March 26, 2012, which was finally heard on September 17, 2012. That motion has been granted. [7] As the presiding motions judge, I determined that the third action was res judicata , and statute-barred.

[ 7 ] Throughout the litigation of the three actions, cost orders have been made against the respondents. Out of the nine cost orders that have been made to date, only one has been paid by the respondents, that being in the amount of $400. The unpaid cost orders total over $27,000.

Th e Law

[ 8 ] A review of the case law pertaining to the courts use of s. 140 of the Courts of Justice Act has been recently undertaken by McEwen J. in Dyce v. Lyons-Batstone 2012 ONSC 490 , confirmed 2012 ONCA 553 . He noted, at para. 56, that the broad scope of the orders that may be made, once a litigant is declared vexatious, can include the staying of actions until outstanding cost orders are paid: Landmark Vehicle Leasing Corp. v. Marino, 2011 ONSC 1671 .

[ 9 ] A vexatious litigant is not deprived of the right to bring proceedings. Rather, the vexatious litigant, once so declared, must establish to the court satisfaction that there is a prima facie ground for the proposed proceeding: McTeague v. Kalevar , 2005 2322 (ONSC).

[ 10 ] In this case, many of the factors are present that were referred to in Re. Lang Michener et al. and Fabian et al. (1987), O.R. (2d) 353 (HC) at para. 20. In that case, Henry J. extracted the following principles from the existing case law:

(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.

[ 11 ] Unquestionably, the respondents are guilty of attempting to re-litigate issues that have already been determined. They have repeated the same issues and grounds in subsequent actions. They have ignored judicial findings of facts. They continue to attempt to rely on evidence that has been evaluated as being irrelevant. They have appealed almost every decision made in the actions, and advised this judicial officer, even during argument of the summary judgment motion and before any decision was rendered, that they would be appealing the decision. They have not paid the costs ordered against them.

[ 12 ] It is also appropriate to consider the behaviour of a litigant both in the type of allegations made in the pleadings and in making groundless allegations of misconduct: Canada Post Corp. v. Varma , 2000 15754 (FC) , [2000] F.C.J. No. 851; Canada v. Warriner (1993), 70 F.T.R. 8 (TD) ; Y.(E.) v. Canada (1995), 102 F.T.R. 189 (TD) ; National Bank of Canada v. Filzmaier (2000), 95 A.C.W.S. (3d) 447 (ONSC) . As stated in my endorsement concerning the summary judgment motion, the respondents hold the unwarranted view that there are numerous judges who should recuse themselves from hearing their matters due to bias. Their objections are multi-faceted, and seem to include any judge who has previously made his decision unfavourable to them. During the argument of the summary judgment motion, Mr. Woodrow referred to the Town's counsel in derogatory terms and accused him of hiding evidence. Both Mr. Woodrow and Ms. Thompson received direction during the hearing of that motion and the present one that their deportment was unacceptable in a courtroom. They give little regard to the Rules and seek procedural avenues that have little merit. Finally, throughout the statements of claim in each of the three actions are allegations of misconduct on the part of multiple agents and employees of the Town, which are expanded upon in each rendition of the claim. An example of the type of allegations made by the respondents in the third action are found at paragraphs 84 and 85 of their statement of claim:

84. The Plaintiffs allege that the Defendant, Mr. Eidsness knowingly misused the authority of his position as the Chief Building and Fire Official for the Town of Gravenhurst, to exaggerate the purported offence on the Subject Property and thereby improperly influenced his subordinates as a means in the furtherance of the Town of Gravenhurst's politically motivated end.

85. The Plaintiffs contend that the Town of Gravenhurst, upon receiving G8 funding approval from Infrastructure Canada for $12.2 million, in late 2009, either on its own, or with the approval and knowledge of Mr. Tony Clement, misappropriated federal government financing from the G8 Summit Legacy fund to pay for the $90,000.00 remedial expenditure incurred by the Town of Gravenhurst on the privately owned Subject Property.

[ 13 ] Despite the many indicators pointing to a finding that these respondents could be considered vexatious litigants, I am mindful that this is a serious remedy that hinders the rights of litigants to access the courts in the same manner as other citizens. Section 140(1) of the Courts of Justice Act provides:

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.

[ 14 ] Section 140 (5) provides that “[n]othing in this section limits the authority of the court to stay or dismiss a proceeding as an abuse of process or on any other ground.”

[ 15 ] After much consideration, I am not satisfied at this juncture to conclude that the procedural steps taken in relation to the three actions are at such a level, or done with a purpose, that they could be considered “persistent” and entirely unreasonable. They are not, for example, of the same volume as the procedures and proceedings taken by Mr. Dyce as outlined in Dyce v. Lyons-Batstone . Although repeat, ill-founded and without prospect of success, the respondents’ actions were not undertaken to purposefully harass any individual or to pursue an end other than what would be, to them, the “right” outcome. While the second and third actions may have been ill-advised, it cannot be concluded that the respondents instituted those actions for a nefarious purpose. They are quite fervent in their belief that they have been wronged and I believe them to have been sincere in their pursuit of what they consider to be justice. I must also take into account that they are self-represented and that their procedural missteps could be taken out of ignorance of the law, as opposed to deliberate recusancy.

[ 16 ] This is not to encourage the respondents to continue to litigate all of the issues surrounding the Order to Remedy – it should be apparent to them by now that any such action has no chance of success.

[ 17 ] However, there remains the issue of the unpaid costs. The respondents have been ordered on nine occasions to pay costs and have complied only once. Court orders are not suggestions; they are orders that must be obeyed. Although one possible remedy could be a stay, there is no proceeding to stay given that the third action has now been dismissed by my earlier order.

[ 18 ] The court has the inherent jurisdiction to control its proceedings and the respondents must not be allowed to continue to litigate, in the face of these unpaid cost orders, without consequences. Accordingly, in the event that the respondents feel yet again inclined to commence an action against the Corporation of the Town of Gravenhurst, I make the following order:

1. Any proceeding commenced by Deborah Stephenson or Stephen Woodrow against the Corporation of the Town of Gravenhurst, David Eidsness, or any other of the Town’s employees or agents related to, associated with, or involving the property located at 904 Bay Street, Gravenhurst, Ontario, Roll Number 010-013-02815 shall be automatically stayed upon issuance until the outstanding cost orders made in court file numbers CV-141-09-00, CV-10-77, and CV-12-9-00 are paid in full, together with all post-judgment interest due.

[ 19 ] If either party seeks to address the costs of this motion, they may make brief submissions not exceeding 3 double spaced typewritten pages, plus a Bill of Costs, delivered to the office of the judicial assistants in Barrie. The Town’s submissions are due by October 5, 2012, the plaintiffs’ by October 12, 2012 and any reply by October 16.

HEALEY J.

Date: September 24, 2012

[1] Endorsement of Quinlan J. released July 9, 2010 ( Stephenson v. The Corporation of the Town of Gravenhurst , 2010 ONSC 3922 ), Reasons for Decision of DiTomaso, J. released April 28, 2011 ( 2011 ONSC 2649 ), Reasons for Decision of Watt, J. A. released August 15, 2011, Endorsement of Eberhard, J. released September 16, 2011 ( 2011 ONSC 5421 , Endorsement of Healey, J. released September 24, 2012 ( 2012 ONSC 5368 )

[2] Endorsement of Quinlan J. released July 9, 2010 ( Stephenson v. The Corporation of the Town of Gravenhurst , 2010 ONSC 3922 ).

[3] Reasons for Decision of DiTomaso, J. released April 28, 2011 ( 2011 ONSC 2649 ).

[4] Reasons for Decision of Watt, J. A. released August 15, 2011

[5] Endorsement of Eberhard, J. released September 16, 2011 ( 2011 ONSC 5421 ).

[6] Endorsement of Sharpe, J.A. dated November 30, 2011.

[7] Endorsement of Healey, J. released September 24, 2012 ( 2012 ONSC 5368 ).