Dutton Brock LLP v. Elizabeth Balanyk, 2012 ONSC 5748

ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-4156
DATE: 2012-10-12

B E T W E E N:

DUTTON BROCK LLP

S. Alexandre Proulx, Counsel for the Applicant

Applicant

• and -

ELIZABETH BALANYK

Self-Represented

Respondent

HEARD: September 7 th , 2012

REASONS FOR RULING

PARAYESKI J.

1After hearing the application and the respondent’s motion in reply, I declared the respondent, Ms. Elizabeth Balanyk, to be a vexatious litigant and ordered that she be required to obtain leave before commencing or continuing any action she had started in any court in Ontario, for reasons to follow. Given my ruling on the application, I dismissed the reply motion because it was moot. These are my reasons.

2The applicant is a law firm which represents or represented defendants who were sued by the respondent. The action arose as a result of those defendants, or some of them, having barred the respondent from entering casinos which they operate. Among other things, the respondent claimed “loss of potential winnings from slot play at all OLGC casino and slot properties”.

3The defendants brought a summary judgment motion seeking to dismiss the plaintiff’s action with costs. That motion was heard by Maddalena J. on December 21 st , 2010. Her Honour granted an order dismissing the plaintiff’s action with costs.

4The respondent appealed Maddalena J.’s order to the Court of Appeal.

5The Court of Appeal issued and sent out a notice of intention to dismiss the appeal for delay, which notice was dated March 3 rd , 2011. The notice required that the appeal be perfected on or before March 24 th , 2011.

6The respondent brought a motion seeking an extension of time to perfect her appeal. That motion was heard by Chief Justice Winkler on March 21 st , 2011. Winkler C.J.O. denied the motion. He noted that, despite her allegations of medical problems, the respondent had been able to file substantial materials in support of her motion to extend, and indicated that she could have used that same energy to perfect her appeal. He also commented that he found no merit in the appeal itself.

7On March 22 nd , 2011, the respondent served two of the defendants with a nine page notice of motion to review the previous day’s ruling of Winkler C.J.O.

8The Court of Appeal issued and sent out a further notice of intention to dismiss for delay dated June 28 th , 2011, in respect of the respondent’s motion to review the order of Winkler C.J.O. mentioned above. The respondent had not perfected her motion, and, in fact, has never done so.

9Instead of perfecting that motion, the respondent brought yet another motion, this one seeking to set aside the notice of intention to dismiss for delay dated June 28 th , 2011.

10On July 26 th , 2011, Juriansz J.A. dismissed the motion. In his endorsement of that day, Juriansz J.A. once against questioned why the respondent had invested her time in putting together substantial materials for her motion to set aside the notice, rather than perfecting her motion. He appears to have agreed with Winkler C.J.O. that the underlying appeal was without merit.

11On July 28 th , 2011, the Court of Appeal issued two orders, one dismissing the appeal itself for delay and one dismissing the motion to review the order of Winkler C.J.O.

12None of this deterred the respondent. On September 23 rd , 2011, she brought a further motion in writing seeking to set aside the two dismissal orders described in the preceding paragraph.

13LaForme J.A. dismissed the respondent’s motion. In his endorsement, he queried the respondent’s alleged medical problems in light of her ability to continue to prepare and file lengthy motion materials. He specifically stated that “there is no merit to the appeal”.

14The respondent pressed on. She brought a further motion seeking to set aside the decisions of Winkler C.J.O., Juriansz J.A., and LaForme J.A. That motion was heard by a three member panel of the Court of Appeal, consisting of Justices of Appeal Feldman, Sharpe and Simmons, on November 25 th , 2011. They dismissed the respondent’s motion with a single sentence endorsement.

15The respondent was ordered to pay fixed costs by Maddalena J. following the summary judgment motion, and by the Court of Appeal at the time of each of its rulings as described above. The respondent has not paid anything toward those costs.

16Of course, the parties responding to the respondent’s motions before the Ontario Court of Appeal have incurred their own solicitor costs throughout the process. The evidence is that those costs are approximately $60,000.00.

17The present application was issued on December 13 th , 2011. It appears to have had some, albeit limited effect on the respondent. She has offered to cease her efforts in respect of her dismissed for delay appeal of the judgment of Maddalena J. described above. However, it appears to be possible that she did so, in part at least, because she thinks it affords a tactical advantage relative to the application she faces. As her responding materials reflect, and as she argued at length before me, she takes the position that, with the underlying action and appeal having ended, there is no proper context in which to hear the application. She is mistaken on that point. The ending of that action does not somehow make her past litigation conduct disappear. It is precisely that, and other, conduct which is to be reviewed here.

18The applicant points out, in its supporting materials, that the respondent had some five open and active litigation files at Welland as of March, 2011. Three other files involving the respondent were found at St. Catharines, also as of March, 2011, although her amended amended statement of claim in one of them had been struck on September 22 nd , 2010, by Quinn J., as disclosing no reasonable cause of action. His Honour also found that the action was “frivolous, vexatious and an abuse of process” (see order of that date in Court File #51625/09 at St. Catharines). The Registrar at St. Catharines refused to make copies for the applicants of all of the respondent’s files because there was insufficient staff time to deal with the thousands of pages involved. The Registrar would not permit the applicant’s agent to examine the files themselves.

19The respondent denies that she has as many litigation files as the court records showed in March of last year.

20I give little, if any, weight to the sheer number of actions in which the respondent appears to be involved. I do so only because I have limited information with respect to how she is conducting most of them. With the exception of the one dealt with by Quinn J. as described above, they may all be being handled appropriately. That said, I am troubled by the fact that fulsome examination of the balance of the St. Catharines actions has been effectively frustrated by means of the respondent having inundated the filing system with her materials.

21The very way in which the respondent responded to this application and argued it is worth noting. Her initial responding affidavit contained 149 paragraphs. The materials she filed in support of her responding motion, whereby she asks, inter alia , for an order dismissing the application and declaring it “an abuse of process, vexatious, frivolous and scandalous, based on improper ulterior motives, improper purpose and actions of the applicant ( sic. )”, consists of some 132 paragraphs. I shan’t attempt to summarize the affidavits, but do observe that they are repetitious, self-aggrandizing, and reflect the respondent’s attitude that anyone who disagrees with her is wrong.

22Her argument before me was similar. Instead of trying to rationalize her own behaviour in returning to the Court of Appeal multiple times without good cause, the respondent went on the offensive. She repeatedly belittled counsel who appeared for the applicant and his law firm, and cast aspersions on the defendants in the underlying action. She did so without evidence beyond her “knowing” about these people because she is from Niagara Falls where they do business.

23It is apparent that the respondent is obsessed with litigation. She compared herself to Nelson Mandela and Lech Walesa for her doggedness in protecting her perceived rights. She stated that she believes she was placed on this Earth to make a difference by means of litigation.

24I reject the respondent’s implied argument that the present applicant lacks status to bring this application because it is not a party to any action involving her. An applicant in these circumstances need not be such a party. To its credit, the applicant law firm has stepped forward to bring the situation to the court’s attention. It has incurred its own costs in so doing, and has exposed itself to a possible costs award being made against it in the process.

25Section 140 of the Courts of Justice Act reads as follows:

Vexatious proceedings

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.

26Henry J. in his decision in the case of Lang Michener et al v. Fabian et al , (reported at 1987, 16 CPC (2d) at pg. 93), sets out a number of factors which characterize vexatious proceedings. Those factors include the following:

(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.

27The conduct of the respondent clearly fits within the parameters of several of these factors. She was told on multiple occasions by the Ontario Court of Appeal that her underlying appeal was without merit, and yet persisted until challenged by the present application. She has failed to pay costs as ordered against her.

28As stated above, in response to the application, the respondent makes little or no effort to rationalize her behaviour. Instead, she merely denies that she intended to be vexatious and then went on the offensive to attack the applicant for raising the issue in the first place.

29In my view, the respondent has crossed the line that divides the assertion of legitimate rights from vexatious conduct. This distinguishes her, for example, from the respondent in the Prince Edward Island Court of Appeal decision in PEI (Attorney General) v. Ayangma, (2004) C.P.C. (5 th ) at pg. 276, as cited by her.

30Perhaps the main purpose of s. 140 of the Courts of Justice Act is to ensure that the court system is not abused by someone like the respondent to the detriment of other litigants and to the system as a whole. Those other litigants are not limited to the parties involved in matters pursued by the allegedly vexatious litigant, but anyone who must make use of the court and its limited resources. It is indeed an access to justice issue.

31Lastly, while I do appreciate that the order I have made has broad application and implications, I point out that it does not bar the respondent from litigating. It merely serves to govern her conduct by requiring her to seek and obtain judicial leave before pursuing that course. Unfortunately, it is plain that the respondent requires that kind of governance.

32The respondent’s reply motion has been described above and, given my ruling on the application, all of the points raised by it are moot. Thus, it was dismissed by me.

Parayeski J.