ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-12-466666

DATE: 20130304

BETWEEN:

Dr. Young-Mee Yae

Applicant

– and –

Young Park

Respondent

Genna A.S. Evelyn, for the Applicant

Self-represented

HEARD: February 26, 2013

Morgan J.

[1] The Applicant seeks an order under section 140(1) of the Courts of Justice Act, RSO 1990, c. C.43, that the Respondent is a vexatious litigant and that no further proceedings be initiated by the Respondent except with leave of the court. In addition, the Applicant seeks an order that the action commenced by the Respondent as Court File No. 99-CV-176705 (the “Action”) be stayed.

[2] The Statement of Claim in the Action was issued on September 17, 1999. The Respondent herein was plaintiff in the Action, and claimed damages against the Applicant herein for negligent dental treatment. The Statement of Defense was served on March 15, 2000.

[3] At the outset of the hearing the Respondent requested an adjournment. She stated that she had sought to retain counsel for this Application, but that she had been unable to schedule a meeting with her counsel, Mr. Gerald Punnett, prior to the hearing date. She also indicated that she has a medical issue that prevents her from arguing the Application as scheduled.

[4] Ms. Evelyn, on behalf of the Applicant, opposed the adjournment. She points out that both of the Respondents’ grounds for an adjournment – unidentified ailments and lack of legal counsel – have been a consistent refrain throughout the Action and her consistent bases for delaying the proceedings.

[5] The Respondent indicated that she had correspondence from a doctor explaining why she cannot proceed with the hearing of the Application. She also indicated that she had retained Mr. Punnett and had scheduled a meeting with him. I adjourned the hearing for 20 minutes in order to allow the Respondent time to look for her doctor’s letter and to give the Respondent and Ms. Evelyn a chance to phone Mr. Punnett’s office to verify the appointment.

[6] Upon their return to court, the Respondent advised me that she was unable to find anything from her doctor. Ms. Evelyn then advised me that she had spoken with Mr. Punnett’s assistant who indicated that Mr. Punnett is away from the office but that she has no record of his having been retained by or having booked an appointment with the Respondent. I asked the Respondent when her appointment was scheduled for, but she was not able to tell me.

[7] The Application Record herein was served on November 13, 2012. The Respondent served her large Responding Record on January 21, 2013. On January 28, 2013, the Respondent and Ms. Evelyn both appeared in court for the hearing of the Application, but motions court was overbooked that day and their matter was not reached. Ms. Evelyn advised me that the new hearing date was scheduled consensually with the Respondent when the two of them attended at the motions scheduling office on January 28th.

[8] Under these circumstances, I declined to grant an adjournment and invited submissions on the merits from both sides.

[9] As a helpful guide to the proceedings, Ms. Evelyn has included as Schedule C to her factum a chart setting out in detail the steps that have been taken in the Action leading to the within Application. The detailed steps are as follows:

(i) January 26, 2004 – Justice Ducharme in “to be spoken to” court ordered that the Respondent amend the Statement of Claim to include damages for lost income. No costs awarded;

(ii) December 30, 2008 – Justice Campbell heard a request by the Respondent for an urgent motion date to set aside the settlement. Campbell J. refused to approve the request because the motion record was not completed, served or filed by the Respondent. No costs awarded;

(iii) January 20, 2009 – Justice Brown heard a request by the Respondent for an urgent motion to set aside the settlement. Brown J. noted that this appeared to be a motion to set aside a settlement under which the plaintiff had already received the settlement funds. It was noted that there was no urgency to the motion. The Respondent was directed to obtain a return date from the motions office for a hearing in the ordinary course. No costs awarded;

(iv) March 13, 2009 – Justice Matlow heard a motion seeking to set aside the settlement agreement of November 28, 2008. Matlow J. held that the Respondent’s motion was “completely devoid of merit” and dismissed it. Costs awarded for $1,500;

(v) April 20, 2009 – Justice Lederer heard a motion by the Respondent despite the fact that it was not served on the Applicant. Lederer J. was not able to make sense of the motion but assumed there was some confusion about whom to make out the cheque for the settlement funds. No costs awarded;

(vi) June 15, 2009 – Justice Perell heard a motion brought by the Respondent in which no relief was sought in Notice of Motion. Perell J. noted that the Respondent’s renewed attempt to set aside the settlement was res judicata. Motion dismissed. No costs awarded;

(vii) August 28, 2009 – Justice Wilson presided over a motion in which the Respondent sought payment of “award full” plus interest pursuant to the award of Justice Lederer. Wilson J. refused the Respondent’s request to adjourn given that the action was settled with assistance legal counsel for the Respondent. Settlement funds had been paid and the matter of setting aside the settlement was clearly res judicata. No costs awarded;

(viii) January 7, 2010 – Master Sproat heard a motion by the Applicant to prohibit the Respondent from initiating further motions under Rule 37.16. The Master ordered that the Respondent be required to seek leave of the court by motion in writing to Master Sproat to bring a motion to set aside settlement of action or any associated relief. Costs of $500 awarded to the Applicant;

(ix) January 26, 2010 – Sharpe, MacFarland, and Watt JJ. of the Court of Appeal heard the Respondent’s motion for leave to appeal the order of Wilson J. Leave to appeal denied. Costs awarded to the Applicant in the amount of $500;

(x) May 5, 2010 – Associate Chief Justice O’Connor heard the Respondent’s motion for an extension of time to serve and file a Notice of Appeal of Master Sproat’s January 7, 2010 order. Motion dismissed on basis that the Court of Appeal did not have jurisdiction to hear the proposed appeal. Respondent was directed to Superior or Divisional Court. No costs awarded;

(xi) November 5, 2010 – Law Society of Upper Canada (“LSUC”) heard complaints filed by the Respondent against counsel for the Applicant alleging they had wrongfully:

(a) refused to follow Order of Ducharme J. allowing plaintiff to amend statement of claim to include a loss of income claim, and opposed the order of Lederer J.;

(b) asked the court to stop her from being able to bring further motions;

(c) refused to pay her “award money”;

(d) refused to approve her draft orders; and

(e) asked her to pay the costs awards made against her.

LSUC advised respondent that her complaints did not involve issues which it could determine;

(xii) December 23, 2010 – Respondent refused to provide her consent to form and content to the Deputy Registrar of the Court of Appeal for the January 26, 2010 order of the Court of Appeal as drafted by counsel for applicant. The Order as drafted by Applicant’s counsel was settled, issued and entered;

(xiii) January 28, 2011 – Respondent refused to provide her consent to form and content to the Registrar of the Superior Court for the January 7, 2010 order of Master Sproat as drafted by counsel for applicant. Order as drafted by counsel for applicant settled, issued and entered by the Registrar;

(xiv) May 27, 2011 – Justice Stewart heard the Respondent’s motion to set aside the January 28, 2010 settling of the order of Master Sproat by the Registrar. Stewart J. dismissed Respondent’s motion and upheld the settling of the order. No costs awarded;

(xv) November 7, 2011 – Justice Penny heard the Respondent’s request to appeal the May 27, 2011 order of Stewart J. which upheld the order of the Superior Court Registrar. Penny J. explained to the Respondent that appealing Master Sproat’s order was not open to her, and if it was Stewart J.’s order she wished to appeal, the Superior Court had no jurisdiction to hear it. Respondent then requested an adjournment;

(xvi) February 7, 2012 – Justice Whitaker heard Respondent’s motion that had originally been brought before Penny J. on November 7, 2011, with a new motion record seeking an order that the Court follow an order by Penny J. issued and entered but not approved by defence counsel . Whitaker J. noted that it was not apparent what the Respondent was seeking in the motion. Applicant’s counsel was granted an adjournment to cross-examine the Respondent on her affidavit to determine the nature of the motion. Whitaker J. also indicated that the motion could not proceed as framed and advised the Respondent to retain counsel to assist. Costs reserved;

(xvii) April 24, 2012 – Justice Whitaker heard Respondent’s motion on return with an additional record plus an appeal record seeking an order to enforce Penny J.’s order. Respondent submitted that Penny J.’s order entitled her to payment of “settlement money” of $40 million. Whitaker J. noted that the Respondent twice failed to appear for discovery. The Respondent argued that Ducharme J.’s Oct. 2, 2006 endorsement was judgment entitling her to the entirety of claim for lost income in the action. Whitaker J. found that the Respondent’s motion was not viable and dismissed it. Costs awarded of $1,500;

(xviii) September 12, 2012 – Justice Low presided at case conference where Respondent moved to have TD Canada Trust added as party to action. Low J. advised the Respondent to bring a Master’s motion.

[10] In addition to all of the above steps in the proceeding, I was advised by Ms. Evelyn at the hearing that the Respondent has in very recent weeks sought to amend her claim to add counsel for the Applicant, including Ms. Evelyn herself, as new defendants in the Action. The Respondent apparently sought to bring this motion to amend on an ex parte basis a week ago. At the last moment she advised Ms. Evelyn that she was proceeding in this way, and so Ms. Evelyn did attend at motions court to speak to the matter.

[11] It would appear when the Respondent saw that the Applicant’s counsel was in attendance at court she withdrew her motion to amend. She indicated at the hearing before me that she wanted to review this amended pleading before moving on it again. A copy of the proposed Amended Statement of Claim was handed up to me at the hearing. It does add the Applicant’s lawyers as new defendants, and claims damages against them in the amount of “$1 BILLION” for interfering with her claim.

[12] This extensive history seems to rest on the initial order of Ducharme J. of January 26, 2004 granting the Respondent leave to amend her claim. She subsequently did amend her Statement of Claim, raising the damages sought to $40,000,000. Needless to say, the ruling by Ducharme J. was procedural only, but it seems to have become magnified in the Respondent’s mind over the years.

[13] Specifically, Justice Ducharme’s order that she be at liberty to amend her pleading is now taken by her to have been a substantive judgment for the full amount of what eventually became her amended claim. Everyone who has opposed her after that has become, in her view, an obstacle to collecting the $40,000,000 that she was “awarded”. Like the TD Bank, and Ms. Evelyn and her law firm colleagues, those who stand in her way get added to the claim.

[14] Nothing says vexatious like a one billion dollar claim against opposing counsel for defending their client’s rights. However, it is still worth reviewing the factors that courts have identified as grounding an order under section 141(1) of the Courts of Justice Act. In Henry J.’s often cited decision in Lang Michener v Fabian (1987), 1987 172 (ON SC), 59 OR (2d) 353, at para 20 (Ont Sup Ct), seven indicators of a vexatious litigant were set out:

a) bringing multiple actions to determine an issue that has already been determined;

b) bringing an action where it is obvious that the action cannot succeed, or that the action would lead to no possible good result, or if no reasonable person could expect to obtain the relief being sought;

c) bringing an action for an improper purpose, including harassment of opposing porties by multifarious proceedings;

d) bringing an action in which grounds and issues raised get 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 stages of the proceedings;

e) continuing with an action that exhibits the above traits even if originally meritorious;

f) failure to pay costs of unsuccessful proceedings taken along the way;

g) persistently taking unsuccessful appeals from decisions rendered against the litigant.

[15] The Lang Michener criteria are not exhaustive. However, as Ms. Evelyn points out in her factum, most if not all of the factors identified in that case are present in the Action. The key to an order under section 140(1) is that the litigant must have “persistently” and “without reasonable grounds” conducted the proceeding(s) in a vexatious manner. Bishop v Bishop, 2011 ONCA 211, at para 9.

[16] As is evident from the chronology of the Action set out above, the Respondent has persistently attempted to re-litigate issues already determined by the court. She has brought claims, and amended claims, that no reasonable person could expect to win. She has also initiated motions and appeals that appear to be for the purpose of harassing her opponents rather than for asserting a cognizable legal right.

[17] In addition, the grounds and issues that she raised are consistently rolled forward into subsequent motions and appeals, she has attempted to appeal virtually every ruling, and has persistently failed to pay costs awarded against her. Finally, in one of the most telltale badges of a vexatious litigant, she has brought a series of claims, both in court and at the Law Society, against the lawyers acting against her.

[18] A section 140(1) order is an extraordinary remedy. However, it is a necessary vehicle by which the court can control and prevent abuses of process. Ontario v Coote, 2011 ONSC 858, [2011] OJ No 697, at para 63, aff’d 2011 ONCA 563.

[19] A vexatious litigant order does not deprive a person of access to the courts. Rather it provides an extra layer of oversight by the court; it is aimed at a litigant’s conduct, but does not prejudice the merits of a claim. Science Applications International Corp. v Pagaurov, [2012] OJ No 5696, at para 45. Accordingly, it is beneficial not just to the litigant’s opponent but to the litigant herself by heading off unnecessary proceedings and expenditures of money and time. Ibid., at para 49.

[20] Moreover, a section 140(1) order gives the litigant the advantage of focusing in on the specific relief sought in any given motion or procedure. At the same time, it ensures that she will be responsible for the cost consequences of her litigious actions. Kerton v Kerton, [1997] OJ No 3932, at para 15.

[21] The Respondent has provided the court with no indication that she will end her attempts to re-litigate the issues in the Action. Indeed, her conduct at the outset of the hearing in requesting an adjournment for medical reasons when she could provide no such reasons, and on the grounds that she needed to meet with her lawyer when her lawyer’s office could confirm no such meeting, signals that the burdensome litigation is bound to continue.

[22] Given that numerous judges at the different stages of the Action have found her requests for relief to be repetitive and incomprehensible, the Respondent’s continued litigious conduct has become oppressive to the Applicant and his counsel. Her recent attempt to amend the Statement of Claim in an outlandish way is, finally, more than the Applicant and his counsel should have to bear.

[23] Under the circumstances, the Respondent is ordered to institute no further proceedings in any court except by leave of a judge of this court. Furthermore, the Action is hereby permanently stayed.

[24] The Applicant’s counsel had to work hard in gathering together the elaborate procedural history of the Action. Ms. Evelyn has done a particularly good job in setting it all out with clarity for the court. That said, this Application strikes me as a case where a balanced costs award is appropriate. The Respondent has become a burdensome litigant; but she obviously carries with her the burden of her frustrations with the process.

[25] While the Applicant should not have to bear the brunt, and the expense, of her repeated attempts to re-litigate issues long ago put to rest, the Respondent has also suffered greatly through the many proceedings. The Respondent must pay some costs, but she should not be unduly penalized for her failure to grasp the full extent of the negative impact of her misuse of the judicial system.

[26] The Respondent shall pay costs of this Application to the Applicant in the amount of $6,000.00, inclusive of disbursements and costs.

Morgan J.

Released: March 4, 2013

COURT FILE NO.: CV-12-466666

DATE: 20130304

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Dr. Young-Mee Yae

Applicant

– and –

Young Park

Respondent

REASONS FOR JUDGMENT

E.M. Morgan J.

Released: March 4, 2013