COURT FILE NO.: 203/11 (Orangeville)
DATE: 20121203
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SCIENCE APPLCIATIONS INTERNATIONAL CORPORATION (SAIC CANADA), JOHN COX, DAVID BROADLEY and JOHN MENDLER v. DIMITRE PAGOUROV
BEFORE: K. van RENSBURG J.
COUNSEL: D. Stamp, for the Applicants
Dimitre Pagourov, Respondent, self-represented
REASONS FOR DECISION
The Application
[1] This is an application by Science Applications International Corporation (SAIC Canada), and certain of its current and former employees, John Cox, David Broadley and John Mendler, for an order under s. 140 of the Courts of Justice Act, declaring the respondent Dimitre Pagourov a vexatious litigant, and prohibiting Mr. Pagourov from commencing or continuing any proceedings in the courts of Ontario without leave. In the alternative, the applicants seek an order dismissing as an abuse of process Action No. 182/10 in the Orangeville Court, and/or requiring Mr. Pagourov to post security for costs in that action and in Orangeville Action No. 37/08.
The Litigant
[2] Dimitre Pagourov is an employee of SAIC, which acquired his employer Exploranium G.S. Ltd. (“Exploranium”) in 2003. Mr. Pagourov was an employee of Exploranium since some time in 1991 (although he claims that for a few months, or alternatively throughout the time he was an employee of Exploranium, he was employed directly by the owner of Exploranium, John Cox, in respect of certain activities that were not part of the usual business of Exploranium.
[3] Mr. Pagourov suffers from a number of medical conditions. Since April 2005, he has been on long term disability (“LTD”) leave, receiving benefits. He firmly believes that his medical conditions were caused by his chronic exposure to excessive radiation, both throughout his employment, and as a result of an incident occurring at work in January or February 1997, when a box he was carrying spilled powdered uranium on his face and neck. Mr. Pagourov has been diagnosed with a skin condition known as Vitiligo and a thyroid disorder known as Hashimoto’s Thyroiditis. He has had surgery for cancer, he suffered a stroke in 2009, and he has other medical conditions.
The Proceedings
[4] Since 2005 Mr. Pagourov has commenced at least five actions in the Ontario Superior Court, and he has been involved in proceedings before the Workplace Safety and Insurance Board (the “WSIB” or the “Board”) and the Workplace Safety and Insurance Appeals Tribunal (the “WSIAT”). Except for one action, Action No. 37/08 commenced in the Orangeville court (the “Second Orangeville Action”), all of the proceedings concern his medical conditions that he alleges resulted from workplace exposure to hazardous substances.
[5] The record in this application consisted of two volumes of materials filed by the applicant, as well as a respondent’s application record of six volumes. In these volumes were court documents including statements of claim, orders and notices of appeal, decisions of the WSIB and the WSIAT, with their communications with Mr. Pagourov, and correspondence between Mr. Pagourov and counsel for the defendants and third parties. What follows is a non-exhaustive chronology of some of the steps Mr. Pagourov has taken in an effort to advance his claims against SAIC, its predecessor Exploranium, and certain of the companies’ employees.
[6] In a letter dated June 3, 2001, Mr. Pagourov notified Exploranium that he had commenced a legal proceeding against it and certain unspecified employees. He alleged that certain “work related incidents” were responsible for his health problems, and that Mr. Mendler, as plant manager, did not investigate these incidents in good faith. On July 21, 2001, Mr. Pagourov informed Exploranium that he was terminating the civil action, and would instead pursue a claim for benefits before the WSIB. It appears that no court action had in fact been commenced by Mr. Pagourov at that time.
The First WSIB Claim
[7] In July 2001, Mr. Pagourov filed a claim with the WSIB, alleging that he had suffered a workplace accident; in particular that, in February 1997, while transporting a box in the course of his work, dust contained in the box spilled onto his face and neck, causing him to develop Vitiligo and Hashimoto’s Thyroiditis.
[8] In January 2002, the WSIB sent an occupational hygienist to view Exploranium’s premises and to interview its representatives and Mr. Pagourov about the February 1997 incident. The occupational hygienist completed two reports on Mr. Pagourov’s possible exposure to radiation. The WSIB obtained expert opinions from the Canadian Nuclear Safety Commission and an occupational disease specialist at St. Michael’s Hospital, in Toronto.
[9] In the first half of 2003, Mr. Pagourov filed a series of objections with the WSIB in which he complained about the manner in which it was investigating his claim, and requested that the WSIB compel Exploranium to produce extensive documentation regarding the storage and use of radioactive materials. He also complained about the behaviour of Mr. Cox, Mr. Broadley and Mr. Mendler, alleging that they had been unwilling to cooperate in the investigation, that they had provided false data to the WSIB and that they had taken inadequate safety measures.
[10] On July 31, 2003 Mr. Pagourov sent a letter to the WSIB asserting that Exploranium submitted information to the WSIB that was “not sorted and is very deceiving”. He repeated his request that the WSIB obtain more information from Exploranium and again accused Mr. Mendler of personal involvement in the alleged deception.
[11] Mr. Pagourov submitted other objections to the WSIB, in which he made detailed submissions concerning his alleged exposure to radiation in the workplace, repeating his assertions that Exploranium had in place inadequate storage and handling procedures and that the company and its employees provided the WSIB with false information in an attempt to deceive.
[12] The WSIB issued its decision on March 26, 2004 (the “First WSIB Decision”). The substance of the decision was as follows:
Our Occupational Hygienist carefully considered your work-related exposures. In one of your submissions you were dissatisfied with the exposure information provided by your employer and the exposure assessment conducted by our Occupational Hygienist. Our June 27, 2003 letter responded to this concern. We obtained a review by an external consultant. Dr. Utting, Director Radiation Protection and Environmental Compliance Division, Canadian Nuclear Safety Commission in Ottawa, who agreed to conduct a review of the documentation, related to your case. He provided an expert opinion on the radiation dose and the relationship between your medical problems and workplace exposure. Dr. Utting concluded your radiation doses and current epidemiological evidence did not support your claim that your Hashimoto’s thyroiditis was caused by occupational radiation exposure.
Noting the complexity of the case and your submissions an appointment was made with Dr. House of the Occupational Disease Program at St. Michael’s hospital on November 18, 2003. Dr. House commented that both the Hasimoto’s Thyroiditis and vitiligo are autoimmune disorders. In general the evidence shows that vitiligo is not a health effect that is related to radiation exposure. Therefore, it is his opinion that the vitiligo is not related to radiation or chemical exposure in the workplace.
Our senior Occupational Hygienist reviewed the claim. He noted Dr. House thought it was possible that your Hashimoto’s thyroiditis might be related to radiation exposure. Our Hygienist conferenced your case with Dr. House and it was concluded there was potential but the exposure was small. The Hygienist had considered your dosimetry records from 1992-1993, which showed your exposure below the minimum reporting level.
We also considered worker’s records doing similar work and they were found to be low. Workers who were at higher risk had dose records that were also low. Finally, the Canadian Nuclear Safety Commission reviewed all the relevant information. They concluded the exposures were low and unlikely to be related to your development of Hashimoto’s Thyroiditis.
After carefully considering your statements, attending physician’s reports and the opinions expressed by the WSIB Hygienists and the Canadian Nuclear Safety Commission I am unable to establish a relationship between the Hashimoto’s thyroiditis, vitiligo and sleep apnea and your work exposures at Exploranium Limited. Therefore, I am unable to allow your claim. [Emphasis added.]
[13] Having concluded that Mr. Pagourov’s illnesses were not related to any exposure to radiation in the workplace, the Board dismissed his claim for benefits under the Workplace Safety and Insurance Act (the “WSIA”). Mr. Pagourov was advised of his right to appeal the decision
[14] Mr. Pagourov filed a notice of appeal of the First WSIB Decision on September 17, 2004. In his notice, he requested that “no action be taken on my appeal until I have advised that I am ready to proceed”. Mr. Pagourov ultimately abandoned his appeal of the WSIB Decision on June 29, 2008.
The Brampton Action
[15] On March 31, 2005 Mr. Pagourov commenced the first court action, CV-05-00313300 (the “Brampton Action”) naming as defendants SAIC Canada, Exploranium, John Cox, David Broadley and John Mendler (together, the “Individual Defendants”), and the WSIB. The action claimed damages for injuries and health problems alleged to have been suffered by Mr. Pagourov while he was working at Exploranium, and specifically in relation to the February 1997 incident. The Claim alleged that, among other things, SAIC Canada, Exploranium and the Individual Defendants were negligent and deceitful in their employment practices, thereby causing his injuries. It alleged further that the defendants were in breach of statutory record-keeping obligations and that the WSIB failed to deal with Mr. Pagourov in good faith by improperly adjudicating his claim for benefits.
[16] With respect to the Individual Defendants, Mr. Pagourov alleged, among other things, that Mr. Cox had been engaged in an illegitimate business that was not covered by Exploranium’s licenses, the character of which was actively concealed by the Individual Defendants.
[17] The SAIC defendants notified Mr. Pagourov of their intention to bring a motion to dismiss the action at the time they served their notice of intent to defend. They served a motion record on May 17, 2005 and they advised Mr. Pagourov that they would not be filing a Defence pending the hearing of the motion. The following day Mr. Pagourov noted the defendants in default. The defendants became aware of this fact when Mr. Pagourov served a motion seeking judgment on default, prior to the hearing of the rule 21 motion. Mr. Pagourov refused to set aside the noting in default, requiring the defendants to bring a motion to address the issue.
[18] On March 13, 2007, the Brampton Action was dismissed on the defendants’ rule 21 motion, on the basis that the issues in the action had already been determined by the WSIB, in a decision that Mr. Pagourov had not appealed. Baltman J. held that Mr. Pagourov was attempting to circumvent the appeals mechanism set out in the WSIA, and to relitigate the very issues already decided by the WSIB. She characterized the action as an abuse of process. Baltman J. also concluded that the WSIB had exclusive jurisdiction over Mr. Pagourov’s claim for workplace illness.
[19] The Court of Appeal dismissed Mr. Pagourov’s appeal of this order on October 31, 2007, and awarded costs against him in the sum of $2,500. In a brief endorsement, the court noted its agreement with the motion judge that the action should be dismissed as an abuse of process.
[20] Mr. Pagourov also brought a motion under rule 59.06 to amend the order of Baltman J. on the basis of fraud, deceit or accidental slip. Corbett J. on January 15, 2008 adjourned the motion, and awarded costs of $1,000 against Mr. Pagourov.
[21] The motion to amend was dismissed by Daley J. on May 22, 2008, with costs of $12,854.33. Daley J. noted that the motion was “essentially in the nature of a further appeal and… a further abuse of process”. This decision was also upheld by the Court of Appeal on February 9, 2009, with costs of $2,500 against Mr. Pagourov. Before the Court of Appeal, Mr. Pagourov argued that only the WSIAT had the jurisdiction to determine a “right to sue” application under s. 31 of the WSIA. The court’s reasons were as follows:
Mr. Pagourov’s main point is that under s. 31 of the Workplace Safety and Insurance Act only the Appeals Tribunal, not the court, can determine whether his right to maintain a lawsuit can be taken away. He contends that this issue was not dealt with by Baltman J. on the original rule 21 motion and, therefore, he is entitled to relief under r. 59.06 of the Rules of Civil Procedure.
We do not agree that Mr. Pagourov is entitled to relief under r. 59.06. The question whether s. 31 of the Act vests jurisdiction in the Appeals Tribunal alone to determine the right to maintain an action was argued before this court on the appeal from the order of Baltman J. and not decided. However, this court dismissed Mr. Pagourov’s appeal because it upheld the alternate ground for Baltman J.’s decision, abuse of process.
We have no basis under r. 59.06 to set aside our decision affirming the dismissal of Mr. Pagourov’s action for abuse of process. Mr. Pagourov claimed compensation from the Board for his alleged workplace injury. His claim was denied. However, he has a right of appeal under the Act, which he has commenced but not pursued. There is no suggestion that Mr. Pagourov is precluded from reviving that appeal. He cannot circumvent his statutory appeal right by suing in the court. Quite apart from whether s. 31 of the Act ousts this court’s jurisdiction to decide whether he can bring an action – an issue we need not decide – this court retains jurisdiction to stay or dismiss his action for abuse of process. That jurisdiction was properly exercised in this case. There is no basis to revisit it.
Finally, we do not agree with Mr. Pagourov’s second point that Baltman J. did not deal with some of his causes of action. All his claims and allegations were before her and adjudicated on by her.
The First Orangeville Action
[22] On November 8, 2007, ten days after the Court of Appeal dismissed his appeal of the order of Baltman J. which had dismissed the Brampton Action, Mr. Pagourov commenced Action No. 590/07 in the Orangeville court (the “First Orangeville Action”). The allegations in the Statement of Claim in the First Orangeville Action are substantially the same as those made in the Brampton Action, although this action is against only the Individual Defendants.
[23] The defendants delivered a notice of intent to defend in the First Orangeville Action and advised Mr. Pagourov of their intention to bring a rule 21 motion, specifically advising him not to note them in default while the motion was pending. After attempting to communicate with Mr. Pagourov about a date for the motion, and receiving no response, the defendants scheduled the motion, advising Mr. Pagourov in January 2008 of a July 2008 motion date. In early July, Mr. Pagourov once again served a motion for judgment, and the defendants learned that Mr. Pagourov had noted them in default in or around January 2008. After Mr. Pagourov refused to set aside the noting in default, the defendants brought a motion for such relief, which was returned with their rule 21 motion.
[24] On July 7, 2008, Quigley J. set aside the noting in default, and he adjourned the defendants’ motion to dismiss the First Orangeville Action pending Mr. Pagourov’s appeal to the Court of Appeal from the order of Justice Daley, which at that time was pending. He awarded costs against Mr. Pagourov in the sum of $2,000.
[25] Mr. Pagourov discontinued the First Orangeville Action before the defendants’ motion to strike could be heard.
The Second Orangeville Action
[26] In January 2008, Mr. Pagourov had commenced another action in the Orangeville Court, Action No. 37/08 (“the Second Orangeville Action”). The only defendant to this action is SAIC Canada. The Claim alleges that SAIC Canada lost Mr. Pagourov’s employment contract, and that the LTD benefits he is receiving are based on a lower salary than the salary he was entitled to receive. A Statement of Defence has been filed, in which SAIC Canada contends that Mr. Pagourov is receiving benefits according to his actual salary at the time he went on leave. The parties have exchanged Affidavits of Documents, however no discoveries have been held.
[27] On June 18, 2010 the Second Orangeville Action was dismissed by the Registrar, and on July 12, 2010 Murray J. granted an order setting aside the dismissal and requiring that the plaintiff set the matter down for a status hearing within 30 days of receipt by the plaintiff of the pending decision of the WSIAT in his “right to sue” application.
[28] Mr. Pagourov set down the Second Orangeville Action for trial in May 2011 without notice to the defendants. The action was removed from the trial list by Wein J. on August 2, 2011.
[29] By order of Herold J. dated April 16, 2012, over the objection of Mr. Pagourov, the Second Orangeville Action was stayed pending the hearing of the vexatious litigant application, which had been commenced in July 2011.
[30] The defendants do not ask that this action be dismissed, although, if the order under s. 140 is granted in the terms requested, Mr. Pagourov will not be able to take any steps in the action without leave.
The WSIAT Application
[31] On April 8, 2009 Mr. Pagourov wrote to counsel for SAIC advising that he had commenced a ‘right to sue’ application to the WSIAT (the “WSIAT Application”) in respect of the Brampton Action and the First and Second Orangeville Actions. He advised that he had also commenced an inquiry under the Occupational Health and Safety Act asking the Ministry of Labour “to define whether the pleaded injurious activities were conducted legitimately in Ontario”. In his letter he stated that it would “…be inappropriate for all parties to continue the court proceedings without having a final decision of the Appeals Tribunal”.
[32] On May 25, 2009 Mr. Pagourov reiterated to counsel for the WSIAT that he had no intention to commence or attend any further court proceeding without having received the WSIAT decision.
[33] Oral hearings were held before a vice-chair of the WSIAT on March 2, 2010 and March 3, 2011.
[34] On September 20, 2011, Vice-Chair M.J. Faubert released her decision in the WSIAT Application, finding that Mr. Pagourov had a right to proceed with the Second Orangeville Action (which was not disputed by the respondents), and that, since the Brampton Action had been dismissed, and the First Orangeville Action discontinued, “no purpose would be served by a decision of the Tribunal adjudicating the Applicant’s right to bring either action”. The vice-chair declined to accept Mr. Pagourov’s contention that the court had misconstrued his actions and that only the WSIAT could determine right to sue issues, as this would amount to disregarding the court orders and an attempt to “revive” the Brampton Action.
The Third Orangeville Action
[35] On May 5, 2010, and while the WSIAT proceedings were pending, Mr. Pagourov commenced Action No. 182/10 (the “Third Orangeville Action”), naming as defendants the Individual Defendants. The allegations in the Third Orangeville Action, including the claims for relief, are substantially the same as those advanced by Mr. Pagourov in the Brampton Action and the First Orangeville Action. As in the First Orangeville Action, Mr. Pagourov has limited his claims to the Individual Defendants.
[36] Mr. Pagourov was advised repeatedly that, if he sought to proceed with this action, the defendants would move to have the action stayed or dismissed.
[37] Mr. Pagourov took steps in May 2011 to set the Third Orangeville Action down for trial. By endorsement on August 2, 2011, Wein J. vacated the Third Orangeville Action from the trial list. By order of Herold J. dated April 16, 2012, the Third Orangeville Action was stayed pending the hearing of the vexatious litigant application.
The Second WSIB Claim
[38] In 2010 Mr. Pagourov made a second claim to the WSIB for benefits arising out of the same medical conditions and exposures that were at issue in the First WSIB Claim, and alleging that he had been employed directly by Mr. Cox in 1991.
[39] In a decision dated September 9, 2011, and following an investigation, Mr. Pagourov was advised of the decision of the WSIB to exclude his claim on the grounds that there was no proof of his employment by Mr. Cox during 1991 other than his own statement. He was informed of his right to appeal this decision, but apparently no appeal was taken.
The Fourth Orangeville Action
[40] While my decision in the vexatious litigant application was under reserve, Mr. Pagourov wrote a letter to the court, providing additional unsolicited submissions, and enclosing a copy of a Statement of Claim issued on November 5, 2012 in the Orangeville court (the “Fourth Orangeville Action”). The Claim is against Mr. Cox and claims the right to receive certain information concerning the origin and chemical, toxic and radiation properties of the powders Mr. Pagourov was required to transfer manually from the summer of 1991 to December 1992 and from December 1992 to February 1997, and alleges that Mr. Pagarov contracted disabling illnesses by inhaling and ingesting toxic powders. Mr. Pagourov’s letter attaches a copy of an “Applicant’s Statement” dated November 5, 2012, suggesting that he again seeks a determination from the WSIAT of whether he is entitled to claim benefits under the WSIA for the illnesses he contracted when manually transferring powders.
Positions of the Parties
[41] The applicants contend that Mr. Pagourov is a vexatious litigant. He has commenced repetitive proceedings with respect to matters already determined against him. He has pursued his claims for compensation and his court proceedings in a vexatious manner. It is reasonable to conclude that, unless he is prevented from doing so, Mr. Pagourov will continue a course of conduct which amounts to harassment of the applicants and is abusive of the processes of the court.
[42] In his argument before this court, Mr. Pagourov acknowledged the similarities between the various actions he had commenced, and that all of his claims are in respect of the same illnesses that he alleges were caused by the same alleged exposures. He disputed however that he is attempting to relitigate issues that have already determined. He claims to now accept the orders that have been made and he acknowledges the binding effect of the First WSIB Decision in respect of which he abandoned his appeal. He is adamant however that he has never had the opportunity to litigate the issue which is of most concern to him, that while he was working under the direction of Mr. Cox, he was exposed to substances that were not part of the ordinary business of Exploranium, that caused the various medical conditions he has suffered and that continue to affect his health. Mr. Pagourov believes that he has never had his “day in court”, and in particular, that Mr. Cox has never had to come forward with information to respond to the allegations about the activities that, according to Mr. Pagourov, led to his exposure and then his illnesses.
Vexatious Litigant Order: Legal Principles
[43] s. 140(1) of the Courts of Justice Act provides as follows:
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,
a) no further proceeding be instituted by the person in any court; or
b) 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.
[44] S. 140(5) preserves the authority of the court to stay or dismiss a proceeding as an abuse of process or on any other ground.
[45] The point of departure is to recognize that a s. 140(1) order is an extraordinary remedy that alters a person’s right to access to the courts: Kalaba v. Bylykbashi, 2006 CanLII 3953 (ON CA), 207 O.A.C. 60, at para. 31. At the same time, however, a s. 140 order does not deny a vexatious litigant access to the courts. The additional initial oversight by the court is a procedural step that enforces the requirement that the litigant not behave in a vexatious manner: Ontario v. Coote, 2011 ONSC 858, [2011] O.J. No. 697 (S.C.J.), aff’d 2011 ONCA 63, 2011 ONCA, at para. 63.
[46] In Lang Michener v. Fabian (1987), 1987 CanLII 172 (ON SC), 59 O.R. (2d) 353, at para. 20, Henry J. identified the following factors that may indicate that a litigant is vexatious, warranting an order under s. 140 of the Courts of Justice Act:
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 vexation;
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 had 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.
[47] This list is not exhaustive and not all seven factors identified by Henry J. need to be present before a vexatious litigant order can be made.
[48] Non-judicial proceedings can be taken into account in determining whether a litigant is vexatious or pursuing litigation in a vexatious manner: Bishop v. Bishop, 2011 ONCA 211, at para. 9. In this case, it is relevant to consider the steps taken by Mr. Pagourov before the WSIB and the WSIAT, as well as his various communications with counsel and third parties in an effort to advance his cause.
[49] Finally, as Cumming J. noted in Law Society of Upper Canada v. Chavali, [1998] O.J. No. 5890 (Gen. Div.) at para. 26, a s. 140 order is beneficial to all parties, including the vexatious litigant. It puts the court in control of the process and serves the vexatious litigant and his opponents by averting a further waste of time, money and effort.
Analysis and Decision
[50] I am satisfied that Mr. Pagourov has “persistently and without reasonable grounds” instituted vexatious proceedings in the court and conducted proceedings in a vexatious manner.
[51] There is a pattern of relitigation of issues already determined by the court, and the grounds and issues in earlier proceedings have been rolled forward into later claims. The claims in the First and Third Orangeville Actions are substantially identical to the claims in the Brampton Action, which was dismissed as an abuse of process because it sought to relitigate the question of Mr. Pagourov’s workplace exposure that had already been determined by the WSIB.
[52] It is clear from the record of his written and oral submissions to the courts and the WSIAT, that Mr. Pagourov has continued to argue points and to pursue claims that have been already been determined against him by the WSIB (whose full decision is set out at para. 12) and the Court of Appeal (whose decision is reproduced at para. 21). The Court of Appeal did not decide whether s. 131 of the WSIA ousts the court’s jurisdiction to determine whether a worker has a “right to sue”; which continues to trouble Mr. Pagourov. That issue however is no longer relevant. The court upheld the finding that the Brampton Action was an abuse of process on the basis that Mr. Pagourov was attempting to relitigate what had been determined by the Board, instead of pursuing an appeal of the WSIB decision. Importantly, the Court of Appeal also upheld the dismissal of the claims in the Brampton Action against the Individual Defendants. In the other proceedings he has commenced, Mr. Pagourov has continued to pursue such claims notwithstanding the dismissal of the Brampton Action and the determination by the Court of Appeal that “all of [Mr. Pagourov’s claims were before [the motion judge] and adjudicated by her”.
[53] Mr. Pagourov has conducted himself as a litigant in a vexatious manner, taking default proceedings after specifically being requested not to do so, and notifiying the defendants that matters were “on hold” and then taking steps to set actions down for trial. He has discontinued proceedings when that has suited his purposes. Even in the present application Mr. Pagourov asked that the court refuse to rule on the application, or alternatively that the decision be delayed by two months, so that he could bring another “right to sue” application to the WSIAT and/or pursue with other authorities his claim that Mr. Cox should be required to “identify the powders”.
[54] There are a number of outstanding costs orders in the various proceedings; Mr. Pagourov has paid $2,000 in costs and owes approximately $20,000. As I noted in Coote, at para. 75, costs awards are “an important indicator of the resources that have been expended by opposing counsel in responding to unsuccessful proceedings. In addition, an award of costs against a party should act as a disincentive to fruitless litigation.
[55] The fact that Mr. Pagourov’s court actions have been relatively few in number is not determinative. In the Bishop case, the litigant had commenced only three or four court proceedings, and had made complaints to various professional bodies as a result of his firmly held belief that his sisters had used a power of attorney to misappropriate large sums of money from their mother before she died. The court upheld a vexatious litigant order against Mr. Bishop, noting that he was “unreasonably obsessed with a cause and likely to pursue vexatious court proceedings on an indefinite basis unless stopped” (at para. 9). The same can be said of Mr. Pagourov. The focus is on his conduct, and how he has been interacting with the justice system, and is not limited to whether he originally had a claim that could be advanced at law, or whether he believes in his cause.
[56] Frequently, where the courts have declared a litigant to be vexatious, it is obvious that the litigant had lost sight of his or her original grievance and was pursuing court actions with an animus against specific defendants or participants in the justice system (see, for example, Teplitsky Colson v. Malamas, [2012] O.J. No. 2786 (S.C.J.) and Coote). In the present case, Mr. Pagourov has not abandoned his original claim; it is still very much alive and inspires his litigation efforts. Although Mr. Pagourov may genuinely believe in his cause, his conduct in commencing and pursuing the various court actions is nonetheless vexatious. As the Fabian case notes, the court must examine the whole history of the matter, and not just whether the respondent may at one time have had a proper cause of action.
[57] In response to this application, Mr. Pagourov took the court through the history of his complaints, and appeared to treat the hearing as an opportunity to argue anew his original grievances. He attempted to avoid the effect of the various decisions that have already been made, by asserting that the original WSIB decision was only as between himself and Exploranium, that he had assembled more evidence to suggest that he was in fact engaged in activities working directly for Mr. Cox, that were not related to Exploranium’s licensed business, and that Mr. Cox should be required to come forward with evidence about the boxes of powders that Mr. Pagourov had handled at his direction. His most recent Statement of Claim demonstrates that this is now the focus of Mr. Pagourov’s litigation strategy.
[58] This case is similar to Mascan Corp. v. French, 1988 CanLII 5747 (ON CA), 26 O.A.C. 326, where the litigant had commenced serial proceedings in order to challenge and overturn decisions of the Residential Tenancy Commission which had been upheld on appeal in the courts. The Court of Appeal upheld the finding under s. 140. In this case, Mr. Pagourov continues to attempt to avoid the effect of two decisions of the WSIB, and in so doing also ignores the determination by the Court of Appeal that the Brampton Action was an abuse of process. If the Brampton Action was an abuse of process, so are all subsequent actions in which Mr. Pagourov has asserted substantially the same claims.
[59] I am satisfied that an order under s. 140 of the Courts of Justice Act is justified and necessary in this case. Nothing short of a vexatious litigant order will prevent Mr. Pagourov from continuing his efforts to pursue the defendants in the courts. Such an order does not prohibit Mr. Pagourov’s access to the justice system; it does however provide for control and supervision over any action he does take, on the basis of his conduct to date: Coote, at paras. 63 and 64.
[60] I note that the Second Orangeville Action does not raise issues that have already been determined. Mr. Pagourov’s conduct in that action has also been vexatious, and the defendants are justifiably concerned about how he will litigate the Second Orangeville Action, and in particular whether he will attempt to introduce into that action issues respecting his illnesses.
[61] I have concluded that the Second Orangeville Action will not be stayed, but will proceed under the supervision of a judge to be appointed by the Regional Senior Justice of the Central West Region. The defendants sought an order for security for costs as an alternative form of relief in this motion. That motion is adjourned sine die and may be renewed at the option of the defendants before the case supervision judge following the scheduling of examinations for discovery, or if there are no discoveries, when the action is placed on the trial list.
Order
[62] An order shall therefore issue in the following terms:
THIS COURT DECLARES that Dimitre Pagourov has persistently and without reasonable grounds instituted vexatious proceedings and conducted proceedings in a vexatious manner in the courts of Ontario, within the meaning of sections 140(1) (a) and (b) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, WITH RESPECT TO ORANGEVILLE ACTION NO. 37/08, THIS COURT PROHIBITS Dimitre Pagourov, either directly or indirectly, from instituting any proceeding or continuing any proceedings previously instituted in any court in Ontario, except until such time as he has obtained leave pursuant to s. 140(3) of the Courts of Justice Act and as provided for in this order.
THIS COURT DIRECTS that any such application for leave shall be in writing and sent by fax or registered mail to the Regional Senior Justice of the Central West Region (the “RSJ”) ex parte, which shall be accompanied by an affidavit that outlines the merits of the proposed proceeding or step, and a copy of this Order. The application and affidavit shall not exceed ten pages in length. The application for leave will be determined by the RSJ or her designate, who will (i) give directions as to service of the application and the procedure for determination of the application; or (ii) dismiss the application.
THIS COURT ORDERS that should Dimitre Pagourov file material seeking to commence or continue a proceeding or any appeal in any court in Ontario without first filing an entered order permitting him to do so, the proceeding shall be immediately stayed upon any person filing a copy of this order in such court.
THIS COURT FURTHER ORDERS that, notwithstanding that Dimitre Pagourov has been declared a vexatious litigant, pending further order of this court, he may continue as plaintiff in Orangeville Action No. 37/08, which action shall be under the case supervision of a judge to be appointed by the RSJ.
THIS COURT FURTHER ORDERS that no further proceedings will be accepted from Dimitre Pagourov for filing or scheduling by any court in Ontario without the approval of the RSJ or her designate, and with respect to Action No. 37/08, without the approval of the RSJ or the case management judge assigned by the RSJ.
THIS COURT FURTHER ORDERS that a copy of this Order be forthwith delivered to the Ontario Court of Appeal and every region of the Superior Court of Justice and Divisional Court.
Costs
[63] The applicants are entitled to their costs of the application against Mr. Pagourov. I will receive submissions in writing limited to three pages each as follows: from the applicants within 20 days, responding submissions from Mr. Pagourov within 15 days of receipt of the applicants’ submissions and reply submissions if any within ten days of receipt of the responding submissions.
K. van Rensburg J.
DATE: December 3, 2012
COURT FILE NO.: 203/11 (Orangeville)
DATE: 20121203
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SCIENCE APPLCIATIONS INTERNATIONAL CORPORATION (SAIC CANADA), JOHN COX, DAVID BROADLEY and JOHN MENDLER v. DIMITRE PAGOUROV
BEFORE: K. van Rensburg J.
COUNSEL: D. Stamp, for the Applicants
Dimitre Pagourov, Respondent, self-represented
REASONS FOR DECISION
K. van Rensburg J.
DATE: December 3, 2012