ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 2552/12
DATE: 2013-01-22

BETWEEN:

BANK OF MONTREAL

Applicant

– and –

ILSA CUDINI also known as ILSA SILVA also known as ILSA DA SILVA

Respondent

Mark Hartman, for the Applicant
Respondent/Self-Represented

HEARD: October 29, November 1 and November 30, 2012

REASONS FOR JUDGMENT

GRAY J.

[1] As a preliminary matter, the style of cause is amended by adding the words “also known as Ilsa Da Silva”, to the name of the respondent.

[2] Before me is an application under s. 140 of the Courts of Justice Act, to declare the respondent a vexatious litigant, and for appropriate relief.

[3] For the reasons that follow, the application is granted.

Background

[4] The events that give rise to this application have their origin in a mortgage granted by the respondent’s son, Paul Serpa, to the applicant, (“the Bank”) on a property in Brampton.

[5] The property was originally transferred to Anthony Cudini on October 5, 1990, and was transferred from Anthony Cudini to Carolyn Da Silva on January 5, 2000. It was then transferred from Carolyn Da Silva to Paul Serpa on January 27, 2006.

[6] Paul Serpa apparently lives somewhere in Asia, and has never appeared, either personally or through counsel, in any of the various proceedings leading up to this application. He has granted a power of attorney to the respondent, Ms. Cudini.

[7] Ms. Cudini has two other sons, Julian and Joseph, who live in Brampton.

[8] Paul Serpa granted a mortgage to the Bank in the principal amount of $240,000. It was collateral to a line of credit, and was registered against title to the property on December 14, 2007. The mortgage was payable on demand.

[9] On August 24, 2011, the Bank made demand for payment of the outstanding balance, said to be $279,824.78. Paul Serpa did not pay the outstanding amount prior to the date fixed for payment, namely August 31, 2011.

[10] By Statement of Claim issued on September 12, 2011, the Bank commenced proceedings to enforce the mortgage, and issued a notice of sale on September 16, 2011.

[11] Paul Serpa defended the action by Statement of Defence dated January 23, 2012.

[12] The property was occupied by two tenants, one in a basement apartment and one in the balance of the property. As far as can be determined, none of Paul Serpa, Ms. Cudini, Julian or Joseph actually resided in the property.

[13] The occupant of the basement apartment vacated the premises on February 15, 2012. The Bank served a Notice of Attornment of Rents on the occupants of the balance of the property, and those occupants vacated the property on February 27, 2012.

[14] The applicant took possession of the property after the tenants had vacated.

[15] Commencing on December 6, 2011, the first of what turned out to be many proceedings was commenced by Paul Serpa and/or the respondent, Ms. Cudini.

[16] A Notice of Motion was served in the name of Paul Serpa as moving party, originally returnable on December 15, 2011, that was ultimately made returnable on December 22, 2011. The relief that was sought included an order allowing the respondent to manage the property; vacating the Notice of Attornment of Rents; staying the proceedings; and staying the sale of the property. Ms. Cudini sought to represent Paul Serpa. Paul Serpa did not appear.

[17] On December 22, 2011, Justice Daley held that Ms. Cudini had no standing to represent Paul Serpa, since she is not a solicitor. The power of attorney granted to her by Paul Serpa was insufficient to give her standing. Daley J. dismissed the motion without prejudice to any further motion that Paul Serpa may choose to bring after the filing of a Statement of Defence. The decision of Daley J. was not appealed.

[18] On March 12, 2012, the respondent served a motion returnable March 21, 2012, and on March 14, 2012 served a motion returnable March 15, 2012. In substance, both motions requested orders requiring the Bank to stop its proceedings.

[19] The motion returnable March 15, 2012 came before me. I adjourned that motion to March 21, 2012, the date the respondent had brought the other motion.

[20] On March 21, 2012, I held that the Bank was entitled to take possession of the property notwithstanding the absence of a formal writ of possession, citing Royal Trust Corp. of Canada v. Gupta (1997), 24 O.T.C. 27 (Gen. Div.). I declined to decide whether Ms. Cudini could represent Paul Serpa, but dismissed her motions on the merits.

[21] The respondent brought a motion for leave to appeal my decision on April 3, 2012. On that date, Justice Donohue dismissed the motion, holding that Ms. Cudini had no standing to represent Paul Serpa, and Justice Donohue awarded costs to the Bank in the sum of $4,500. Those costs have not been paid. This was the first of a number of orders for costs that were not paid.

[22] On April 13, 2012, the respondent purported to appeal Justice Donohue’s decision.

[23] On April 23, 2012, the Bank brought a motion for summary judgment in its action. That motion was original scheduled for May 10, 2012, and was rescheduled to May 16, 2012.

[24] The respondent brought an ex parte motion on May 12, 2012, requesting an order preventing the Bank from dealing with personal effects located at the property. Hourigan J. denied the request to have the motion placed on the list, and it was not heard. Earlier, the Bank had requested Paul Serpa to remove personal property from the property, but no arrangements were made to do so.

[25] Paul Serpa and the respondent commenced a Small Claims Court action against the Bank in August 2011, and served an amended claim on March 6, 2012, seeking payment of $20,298.71. In substance, the relief claimed in the Small Claims Court action relates to the accuracy of the amounts claimed by the Bank in its mortgage enforcement action, and claims damages allegedly suffered by Paul Serpa and the respondent as a result of the Bank taking possession of the property. Issues regarding the accuracy of the amounts claimed by the Bank were properly determinable in the summary judgment proceedings brought by the Bank, and the Bank’s right to possession of the property had been determined by me on March 21, 2012.

[26] On March 30, 2012, the solicitors for the Bank received a Notice of Application, naming Paul Serpa and the respondent as applicants, in which they sought a stay of the proceedings and an order allowing entry to the property. After discussion with counsel for the Bank, that application was not pursued.

[27] On April 2, 2012, Ms. Cudini issued an application naming herself as the applicant and the Bank as the respondent. The application was returnable on April 19, 2012. Among other things, the application requested an order staying the Bank’s action, and an order allowing Ms. Cudini to complete the sale of the property. Inquiries were made by the Bank’s solicitors as to whether the application would be heard. While no material had been filed with the Court, the Bank’s solicitors were advised that Ms. Cudini could still ask that the matter be added to a judge’s list for hearing on April 19, 2012.

[28] A student-at-law employed by the Bank’s solicitors attended on April 19, 2012, but Ms. Cudini did not attend and the application was not heard.

[29] On April 13, 2012, an application was served on the Bank’s solicitors. Ms. Cudini was the applicant. Among other things, the application requested an order setting aside my order and Justice Donohue’s order, and allowing access to the property. No material was filed and the application was not heard. Ms. Cudini did not attend.

[30] Email correspondence passed between Ms. Cudini and the Bank’s solicitors with respect to the various applications. On April 23, 2012, Ms. Cudini sent an email which stated, among many other things, “You robbed me, my children and my family of our rights and I will fight to get them back and will take further court motions/applications/appeals, whatever it takes ‘unless’ you do the right thing and ‘act peacefully’, something your company has not done.”

[31] On April 27, 2012, Ms. Cudini faxed a notice to the Bank, the Bank’s solicitors, and the Bank’s property manager stating that it was a formal notice of an action that had been commenced against all three parties.

[32] On May 17, 2012, the Bank’s solicitors received emails from Ms. Cudini requesting access to the property. The request was declined, on the basis that the Bank was in lawful possession of the property.

[33] On May 21, 2012, the locks at the property were changed, and Paul Serpa’s brothers moved into the property. As a result, the Bank attended before Justice Fitzpatrick on May 23, 2012, and obtained an order confirming that the Bank was and is entitled to lawful possession of the property, and directing the police to provide assistance in removing trespassers.

[34] On May 21, 2012, the Bank’s solicitor received an email from Ms. Cudini in which she advised that she had scheduled an attendance in an action where the Bank, the Bank’s solicitors, and the Bank’s property manager were defendants. No Statement of Claim in that action had been served.

[35] The Bank’s solicitors caused the court files to be searched, and obtained a copy of a Statement of Claim issued by Ms. Cudini on May 4, 2012, in Toronto, in which she seeks payment of $109,600 from the defendants. On May 23, 2012, the Bank’s counsel attended in motion scheduling court in Toronto. Ms. Cudini advised Madam Justice Low that she wanted to schedule an injunction to restrain her eviction from the property. Justice Low refused to schedule the injunction motion.

[36] The application that is now before me was originally returnable on May 24, 2012. Ms. Cudini requested an adjournment as she was feeling ill. Justice Murray granted an adjournment to June 20, 2012, on terms. The terms included a requirement that Ms. Cudini would be prohibited from instituting any further motion, application or proceeding on behalf of anyone, including Paul Serpa, against the Bank and any of its representatives before any court or administrative body, including but not limited to the Landlord & Tenant Board, without first obtaining leave of a judge of the Superior Court.

[37] On June 5, 2012, the Bank’s property manager received a letter from the Landlord & Tenant Board advising that a tenant had filed an application and a hearing had been scheduled for June 5, 2012.

[38] The solicitors for the Bank, in discussion with a representative of the Landlord & Tenant Board, were advised that the applicant before the Board was named Cudini. An articling student attended at the Board, but by the time he arrived the proceedings had concluded. The material filed before the Board disclosed that Julian Cudini and Joseph Cudini had commenced an application against the property manager, seeking an order allowing them to move into the property, and payment of amounts spent on other living accommodations and the replacement value of personal property removed from the property.

[39] The Landlord & Tenant Board dismissed the applications. In its decision, the Board noted that the “tenants” were represented by their mother, Ilsa Cudini.

[40] The Board held that there was no landlord and tenant relationship between either Joseph Cudini or Julian Cudini and the property manager.

[41] In the Board’s decisions, it is noted that Ms. Cudini took the position that she was the landlord of the property, before the Bank and the property manager became involved, and that Ms. Cudini had entered into tenancy agreements with her sons, and that they had been unlawfully removed from the property by the police on May 24, 2012, pursuant to an order of the Superior Court of Justice.

[42] On June 7, 2012, the Bank’s solicitors received a “notice of emergency motion/injunction” by fax, with respect to a motion returnable on June 8, 2012 at Brampton. The applicant was Joseph Cudini. Among other things, an order was sought allowing Joseph to return to the property; allowing Joseph to complete the purchase of the property; directing the Bank to return Joseph’s personal property; setting aside the order of Justice Fitzpatrick concerning possession of the property; prohibiting the Bank from taking any further proceedings without leave, and allowing Ms. Cudini to act in the matter. The motion or application was not set down for hearing, and was not heard.

[43] On June 12, 2012, the Bank’s solicitors received an endorsement issued by Justice Corbett in the matter of an intended appeal of the order of Justice Fitzpatrick regarding the restoration of possession of the property to the Bank. In his endorsement, Justice Corbett noted that pursuant to Justice Murray’s order dated May 24, 2012, Ms. Cudini was prohibited from instituting any further motion, application or proceeding except with leave of a judge of the Superior Court. Since leave had not been sought or granted, Justice Corbett ruled that Ms. Cudini may not bring the appeal and directed the court office not to accept the appeal documents.

[44] On June 20, 2012, the Bank obtained summary judgment from Justice Fitzpatrick against Paul Serpa in the aggregate principal amount of $285,027.90. The judgment also ordered Paul Serpa to deliver possession of the property to the Bank. Ms. Cudini attended at the motion, but Justice Fitzpatrick held that she had no standing to represent Paul Serpa.

[45] As ordered by Murray J., the application that is now before me was also to be heard on June 20, 2012. It was not reached before the end of the day. Ms. Cudini advised Justice Fitzpatrick that she would require at least one hour to make submissions, and she wished to file further material. Justice Fitzpatrick adjourned the application to October 29, 2012, as a long application. It was adjourned on the same terms ordered by Justice Murray, that is, that she be prohibited from pursuing any proceedings in the meantime, except with leave of a judge.

[46] On August 16, 2012, Justice Murray ordered that the return date of October 29, 2012 be changed to August 22, 2012.

[47] On June 27, 2012, the Bank’s solicitors received a Notice of Motion for a motion returnable July 5, 2012, seeking an order transferring the vexatious litigant application to Brampton, and for leave to file a motion to set aside Justice Fitzpatrick’s interim vexatious litigant order. The motion was not set down and was not heard.

[48] On June 27, 2012, the Bank’s solicitors received a Notice of Motion for Leave to Appeal an order of Justice Fitzpatrick of June 20, 2012, and the motion was said to be returnable July 12, 2012.

[49] On June 28, 2012, the Bank’s solicitors received a Notice of Motion for Leave to Appeal, returnable July 18, 2012, seeking an order for leave to appeal the order of Justice Fitzpatrick of June 20, 2012. The motion was not set down and was not heard.

[50] On July 17, 2012, the Bank’s solicitors received an Amended Notice of Motion, for a motion returnable July 27, 2012 at Brampton. It sought an order for leave to continue with certain unspecified proceedings, and for an order for possession of the property, and for an order to extend the closing date for sale of the property by Paul Serpa. No material was filed and the motion was not heard.

[51] On July 5, 2012, the solicitors for the Bank received Notices of Appeal of the decisions of the Landlord & Tenant Board purportedly commenced by Julian Cudini and Joseph Cudini. Only the appeal of the decision involving Julian Cudini was filed with the Court. The appeal was dismissed by van Rensburg J. who found that the appeal had in fact been launched by Ms. Cudini on behalf of her son Julian Cudini.

[52] On July 18, 2012, the Bank’s solicitors received a Notice of Appeal and Certificate respecting the summary judgment granted by Fitzpatrick J. Ultimately, the appeal was not perfected and was dismissed by the Court of Appeal for delay.

[53] As ordered by Murray J., the application that is now before me was made returnable on August 22, 2012. On that date, Justice Coats determined that the application would take longer than one hour, and according, needed to be heard on a long application date. She adjourned the matter to October 29, 2012, and ordered that the interim orders of Murray J. and Fitzpatrick J. remain in full force and effect in the meantime.

[54] On August 28, 2012, Ms. Cudini emailed a Notice of Appeal of the decision of Coats J. to the solicitors for the Bank. Upon being advised that she would require leave to appeal an interlocutory order, Ms. Cudini served two Notices of Motion seeking leave to appeal the decision of Coats J., returnable in Brampton on September 13, 2012. Two further Notices of Motion, one returnable in Brampton and one returnable in Milton, were served on August 29, 2012. None of the motions was set down and they were not heard.

[55] By letters dated August 30, 2012, two of the lawyers acting for the Bank were advised by the Law Society of Upper Canada that Ms. Cudini had filed complaints against them on May 15, 2012. Ms. Cudini did not respond to requests by the Law Society for further information and the Law Society closed their files.

[56] On September 5, 2012, the Registrar of the Court of Appeal issued a notice of intention to dismiss the appeal of the summary judgment of Fitzpatrick J. for delay, unless the appeal was perfected by September 27, 2012.

[57] Ms. Cudini filed a motion on behalf of Paul Serpa to extend the date to perfect the appeal, returnable October 17, 2012. On that date, the motion was dismissed by Justice Doherty, holding that Ms. Cudini had no standing to bring the motion. Doherty J.A. ordered costs of $500. On October 22, 2012, Ms. Cudini launched a Notice of Motion seeking to review the decision of Justice Doherty.

[58] A further motion was brought before Justice Laskin of the Court of Appeal on December 6, 2012. In a brief endorsement, Laskin J.A. stated:

Once again Ms. Cudini appears before the Court. She is subject to a vexatious litigant order and has not obtained leave of the Court to appear. Further, she is not a party and has no standing to bring any motion on behalf of Mr. Serpa or appear on it. The Bank is entitled to its costs of the motion fixed at $1,500 all-inclusive.

[59] Ms. Cudini has brought a motion seeking a review of Justice Laskin’s order.

[60] On December 7, 2012, the Registrar of the Court of Appeal issued an order dismissing Paul Serpa’s appeal from Justice Fitzpatrick’s summary judgment, for delay, with costs of $750.

[61] While not directly relevant, the involvement of Ms. Cudini in certain other proceedings should be noted.

[62] In proceedings unrelated to this case, Ms. Cudini had apparently retained 1704405 Ontario Inc. (Handsmith &Associates) for paralegal services, and was charged $1,155.40. Handsmith commenced proceedings in the Small Claims Court, and Ms. Cudini counterclaimed.

[63] Handsmith succeeded at trial and obtained a judgment for the amount outstanding and dismissing the counterclaim.

[64] Handsmith ultimately issued a notice of garnishment against one of the tenants in the property, requiring payment into court of any rent owing to Paul Serpa and Ms. Cudini. A garnishment hearing was ultimately held, and the tenant was ordered to pay monies into court. After a further hearing, the monies paid into court were ordered to be paid to Handsmith.

[65] Ms. Cudini commenced various proceedings in the Divisional Court. She appealed the Small Claims Court decisions. She brought motions without notice and/or on very short notice before Price J. and before me, requesting that the funds be released to her.

[66] Handsmith brought a motion returnable before van Rensburg J. to quash or dismiss Ms. Cudini’s appeal. Handsmith also sought an order prohibiting Ms. Cudini from commencing or continuing any further proceedings against Handsmith without leave.

[67] Justice van Rensburg granted an order dismissing Ms. Cudini’s appeal, but refused to grant an order prohibiting her from commencing or continuing any proceedings without leave, on the ground that such an order can only be granted on application rather than by motion: see Cudini v. 1704405 Ontario Inc. (c.o.b. Handsmith & Associates), [2012] O.J. No. 5620 (S.C.J.).

[68] At para. 43 of her reasons, van Rensburg J. stated:

If I had not dismissed the existing proceedings commenced by Ms. Cudini against Mr. Smith’s company on the jurisdictional grounds noted above, I would have dismissed the second Divisional Court appeal and the application as an abuse of process. The proceedings were clearly an attempt to relitigate the constituent issues or material facts already embraced in a decision that had already been determined. Such conduct is an abuse of process, and will justify an order dismissing a proceeding.

[69] In 2011, Ms. Cudini was sued by Toronto Moving & Storage Company. On November 15, 2011, Ms. Cudini’s defence was struck by a deputy judge. One of the grounds for striking the defence was that there were outstanding unpaid costs orders.

[70] In 2011, Ms. Cudini sued, among others, Peel Regional Police and ReMax Brampton. She claimed payment of the sum of $24,340 for theft and damage to property and loss of rental income. She alleged that she had been unlawfully arrested and assaulted.

[71] At a settlement conference on April 28, 2011, a deputy judge ordered Ms. Cudini to amend her claim, failing which it would be dismissed. He also ordered costs against her, failing which the claim would be dismissed.

[72] Ms. Cudini did not comply with the order. Instead, she launched a motion seeking relief, including an order striking the costs award, extending the date by which she must amend the claim, banning one of the parties from any appearance in court, and for substituted service.

[73] Deputy Judge Kurz dismissed Ms. Cudini’s motion and her claim.

[74] In his decision, Deputy Judge Kurz referred to the fact that Ms. Cudini’s excuse for not complying with the order was that she knew she would be in breach of the costs order in any event. Deputy Judge Kurz stated:

That is far from an adequate answer. She cannot say she breached one part of an order because she breached another part of the same order so that it makes no difference. To the contrary it makes a great deal of difference. This system of justice is predicated on respect for orders of the court. They are not recommendations, nor are they buffet selections to be chosen or ignored as one pleases. Here the plaintiff shows that she feels entitled to obey only those parts of orders that suit her. It is proper for the court to consider this conduct in determining whether to exercise its discretion in a party’s favour.

[75] As noted earlier, the application now before me was adjourned by Coats J. to October 29, 2012. On that date, it came before me.

[76] Voluminous material had been filed by the Bank, and had been supplemented as various motions and applications had been filed after the date that the application was originally returnable. Ms. Cudini filed one unsworn affidavit on July 18, 2012, and on the return of the application she filed a very short responding application record.

[77] On October 29, 2012, Mr. Hartman completed his submissions just before 1:00 o’clock p.m. Ms. Cudini was to commence her submissions at 2:00 o’clock p.m. Upon resuming, she advised that she had to attend a funeral at 3:00 o’clock p.m. (she had previously advised that it was at 4:00 o’clock p.m.), and she would be unable to make her submissions. In the circumstances, I adjourned the matter to November 1, 2012. The date was fixed by agreement.

[78] On the morning of November 1, 2012, Mr. Hartman furnished me with some written communications from Ms. Cudini, in which she stated that she was unable to attend due to her emotional and physical state of mind. I adjourned the matter, peremptory to Ms. Cudini, to a date to be agreed between Mr. Hartman and Ms. Cudini, at 9:00 o’clock a.m. in Milton. Mr. Hartman and Ms. Cudini subsequently agreed to have the matter heard at 9:00 o’clock a.m. on November 30, 2012.

[79] On November 30, 2012, Ms. Cudini communicated with my assistant, to the effect that she was unable to attend as a result of a mishap involving her car. As a result, I arranged a teleconference at 11:30 a.m. that morning. During the teleconference, Ms. Cudini requested an adjournment. I ruled that I would allow Ms. Cudini to make submissions during the teleconference, to be followed up by any written submissions she wished to make by December 7, 2012. I allowed Mr. Hartman until December 14, 2012 to reply, after which I would reserve my decision.

[80] On December 7, 2012, Ms. Cudini delivered a Notice of Motion returnable December 12, 2012, seeking leave to appeal my determination dated November 30, 2012. On December 7, 2012, I issued a chambers endorsement confirming that Ms. Cudini’s motion did not alter the deadline for the delivery of her written submissions.

[81] On December 12, 2012, Murray J. dismissed Ms. Cudini’s motion for leave to appeal with costs payable to the Bank in the amount of $1,500.

[82] On December 13, 2012, Ms. Cudini served a Notice of Appeal of the decision of Murray J.

[83] No further written submissions were received from Ms. Cudini.

[84] Written reply submissions were filed by Mr. Hartman on December 14, 2012.

[85] The following costs orders have not been paid:

(a) $4,500 awarded by Justice Donohue on April 3, 2012;

(b) $40,566.71 awarded by Justice Fitzpatrick on June 20, 2012;

(c) $500 awarded by Justice Doherty on October 17, 2012 (a motion seeking review of the order was served);

(d) $1,500 awarded by Justice Laskin on December 6, 2012 (a motion seeking review of the order has been served); and

(e) $1,500 awarded by Justice Murray on December 12, 2012 (a notice of appeal of the decision has been served).

[86] There is no evidence as to whether the costs of $750, awarded by the Court of Appeal on its dismissal of the summary judgment appeal, have been paid.

Submissions

[87] Mr. Hartman, counsel for the Bank, submits that the application should be granted. Further, he submits that the Toronto action commenced by Ms. Cudini against the Bank, his law firm, and the Bank’s property manager should be dismissed.

[88] Mr. Hartman submits that Ms. Cudini has instituted a multiplicity of proceedings. For the most part, they seek to determine issues that have already been determined. Further, he submits that Ms. Cudini continues to launch proceedings in the face of Court orders finding that she has no standing to do so. He submits that she has not paid costs orders. She has commenced an action against the solicitors for the Bank. In correspondence with the Bank’s counsel, she stated that she will “take further court motions/applications/appeals, whatever it takes ‘unless’ you do the right thing and ‘act peacefully’, something your company has not done.”

[89] Mr. Hartman notes that in other proceedings, to which the Bank is not a party, Ms. Cudini has behaved in much the same way as she has towards the Bank. Indeed, he points out that Deputy Judge Kurz of the Small Claims Court has stated that “she feels entitled to obey only those parts of orders that suit her”.

[90] Mr. Hartman particularly relies on Re Lang Michener et al and Fabian et al (1987), 1987 172 (ON SC), 59 O.R. (2d) 353 (H.C.J.); Law Society of Upper Canada v. Chavali (1998), 21 C.P.C. (4th) 20 (Ont. Gen. Div.); Ontario v. Coote, 2011 ONSC 858, [2011] O.J. No. 697 (S.C.J.); and Hainsworth v. Canada (Attorney General), [2011] O.J. No. 2408 (S.C.J.).

[91] Ms. Cudini submits that she has done the best she can in the circumstances, and she has been a victim of unjust actions and orders made against her. She submits that the Bank has abused its powers and has victimized her and her family.

[92] Ms. Cudini submits that an order that would restrict her from commencing or continuing proceedings would simply perpetuate the abuse to which she has been subjected. She submits that justice requires that she be permitted to have access to the courts in order that her rights can be vindicated.

Analysis

[93] Section 140 of the Courts of Justice Act provides 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.

(2) [Repealed.]

Application for leave to proceed

(3) Where a person against whom an order under subsection (1) has been made seeks leave to institute or continue a proceeding, the person shall do so by way of an application in the Superior Court of Justice.

Leave to proceed

(4) Where an application for leave is made under subsection (3),

(a) 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;

(b) the person making the application for leave may seek the rescission of the order made under subsection (1) but may not seek any other relief on the application;

(c) the court may rescind the order made under subsection (1);

(d) the Attorney General is entitled to be heard on the application; and

(e) no appeal lies from a refusal to grant relief to the applicant.

Abuse of process

(5) Nothing in this section limits the authority of a court to stay or dismiss a proceeding as an abuse of process or on any other ground.

[94] As a starting point, access to the courts is of fundamental importance in a civilized society. The courts exist for the purpose of resolving disputes. To deprive a litigant of the right to access the courts is a serious matter, and ought not to be done without clear grounds.

[95] Because the right to access the courts is so fundamental, it is important that it not be abused. Since access to the courts is so easily available, in the wrong hands it can be abused. Where it is, it has a serious impact on the court system as a whole, and on other litigants. Court time that should be spent on meritorious cases is wasted. Costs expended on vexatious proceedings, which often cannot be collected, can be enormous. Time and effort must be spent by litigants that is also wasted.

[96] Section 140 of the Courts of Justice Act is the response of the legislature to this concern. It permits the Court to control, but not absolutely bar, access to the courts where abuse is likely to occur.

[97] As recognized in s. 140(5), the Court has always retained the discretion to dismiss or stay a particular proceeding if it is an abuse of process. However, to go further and permit the Court to prevent the commencement or continuation of other proceedings required legislative intervention.

[98] The original relevant statutory provisions were contained in the Vexatious Proceedings Act, R.S.O. 1980, c. 523 [repealed by S.O. 1984, c. 11, s. 218]. That legislation required the consent of the Attorney General before an application could be made, and could be brought only where vexatious legal proceedings were “instituted”. It did not apply where a myriad of interlocutory proceedings were pursued: see Foy v. Foy (No. 2) (1979), 1979 1631 (ON CA), 26 O.R. (2d) 220 (C.A.) [leave to appeal to S.C.C. refused, December 13, 1979]. Section 140 of the Courts of Justice Act is not so restricted, and the Court accordingly has a broad discretion to make an appropriate order where vexatious proceedings have been instituted or proceedings have been conducted in a vexatious manner.

[99] Beyond specifying that an appropriate order can be made where proceedings are “vexatious”, the legislation is silent as to the factors the Court should consider in deciding whether an appropriate order should be made.

[100] The leading case in which the appropriate principles are discussed is Lang Michener, supra, where, at pages 358 and 359, Henry J. stated:

From these decisions the following principles may be extracted:

(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.

[101] Several of the features identified by Henry J. are apposite here. Without intending to be exhaustive, I would mention the following:

(a) Ms. Cudini has continued to pursue a number of issues that have been determined against her; this includes determinations that she has no status to represent Paul Serpa, and that the Bank is in lawful possession of the property;

(b) She continues to bring proceedings attacking the right of the Bank to pursue its rights under the mortgage, notwithstanding that the mortgage was payable on demand;

(c) On several occasions, issues that have been determined against Ms. Cudini have been rolled over into subsequent proceedings and supplemented with additional grounds, and when she is unsuccessful she continues to roll them forward again;

(d) On many occasions, Ms. Cudini has served the Bank’s solicitors with motions and applications, and has not set them down for hearing or appeared on them;

(e) She has filed complaints with the Law Society against two of the Bank’s counsel and refused or neglected to provide any particulars;

(f) She has commenced an action against the Bank’s solicitors, as well as against the Bank’s property manager;

(g) She has brought proceedings against the Bank’s property manager before the Landlord & Tenant Board on the basis that the property manager was a “landlord”, in a blatant attempt to secure possession of the property for two of her sons, when the right of the Bank to have possession of the property had already been determined by this Court;

(h) She has pursued unsuccessful appeals from most, if not all, of the orders that have been made against her;

(i) She has paid none of the costs orders made against her;

(j) Her conduct in proceedings unrelated to the Bank has been similar, and adverse comments have been made against her conduct by judges in those proceedings;

(k) Perhaps most egregiously, many of the motions, applications and appeals pursued by Ms. Cudini have been conducted in direct violation of the interim orders made by Justices Murray and Fitzpatrick, which prohibited her from pursuing any proceedings until this application was disposed of.

[102] It is clear, in my view, that the conduct of Ms. Cudini can only be described as vexatious within the meaning of s. 140 of the Act, and accordingly an order under that section is appropriate.

[103] The question, then, is what scope of order is appropriate.

[104] The section is drafted in such a way as would make it possible to make an order preventing a vexatious litigant from conducting proceedings against a particular litigant without leave of the Court, or to make an order that is more broadly framed, so that the vexatious litigant would require leave of the Court to commence proceedings against anyone.

[105] In this case, I am satisfied that the latter form of order is appropriate. Ms. Cudini has seen fit to pursue proceedings against not only the Bank, but also the Bank’s solicitors and the Bank’s property manager. Furthermore, in her conduct of other proceedings, she has behaved in a manner similar to her conduct in the proceedings involving the Bank. Accordingly, I will make an order similar to the one made by van Rensburg J. in Coote, supra. That order will include a form of “screening” that will require an ex parte written application before a judge before a responding party is required to respond to a motion for leave.

[106] Counsel for the Bank, in addition, requests an order prohibiting Ms. Cudini from bringing any proceedings, including proceedings requesting leave, unless and until she pays all of the outstanding costs orders against her. He relies in this respect on the decision of Lederman J. in Hainsworth, supra. The effect of such an order would be to absolutely bar any proceedings by Ms. Cudini unless and until she paid the outstanding costs orders.

[107] I am not prepared to make that order. In my view, the order that I have made, which requires a pre-screening of any action, application or motion by a judge on an ex parte basis, is sufficient. In this respect, I prefer the reasoning of Nordheimer J. in Chavali v. Law Society of Upper Canada, [2006] O.J. No. 2036 (S.C.J.), at paras. 20-22.

[108] The Bank also requests an order requiring leave of the Court before any proceeding can be commenced before any administrative body, including the Landlord & Tenant Board. I am not prepared to make that order. The jurisdiction of the Court is limited to making an order requiring leave before a proceeding can be instituted in “any court.” Non-judicial proceedings can be considered as evidence from which a Court may infer that court proceedings commenced by a litigant are not bona fide, but are the product of someone who is unreasonably obsessed with a cause and likely to pursue vexatious court proceedings on an indefinite basis unless stopped: see Bishop v. Bishop, 2011 ONCA 211, [2011] O.J. No. 1290 (C.A.), at para. 9. The proceedings commenced at the Landlord & Tenant Board by Ms. Cudini and her sons, Joseph and Julian, certainly fall into this category, and can be considered by the Court in a similar way. However, s. 140 of the Act does not grant jurisdiction to include proceedings before an administrative tribunal in the order that requires leave of the Court to commence or continue them.

[109] As noted earlier, Mr. Hartman requests an order dismissing the action commenced in Toronto against the Bank, his law firm, and the property management company. That request is granted. I am persuaded that that action is not bona fide, and was commenced as part of Ms. Cudini’s campaign of vexatious proceedings.

[110] I have little doubt that Ms. Cudini feels strongly that she and her family have been badly treated by the Bank, and she believes that many, if not most, of the court proceedings in which she has been involved have been wrongly decided. However, like any disappointed litigant she must accept an adverse court decision subject only to appeal. She is not entitled to continually engage in litigation seeking to rehash matters that have been decided against her.

Disposition

[111] For the foregoing reasons, the application is granted, in the form attached as Appendix ‘A’. Approval of the formal order is dispensed with. The formal order shall not issue until I have disposed of the costs of the application.

[112] I will entertain brief written submissions with respect to costs, not to exceed three pages, together with a costs outline or bill of costs. Mr. Hartman shall have five days, and Ms. Cudini shall have a further five days. Mr. Hartman shall have five days to reply.

GRAY J.

Released: January 22, 2012

Court File No. 2552/12

ONTARIO

SUPERIOR COURT OF JUSTICE

THE HONOURABLE TUESDAY, THE 22nd DAY

MR. JUSTICE GRAY OF JANUARY, 2013

BANK OF MONTREAL

Applicant

- and -

ILSA CUDINI also known as ILSA SILVA
also known as ILSA Da SILVA

ORDER

THIS APPLICATION made by the applicant, Bank of Montreal, for an order declaring the respondent a vexatious litigant, was heard on October 29, November 1 and November 30, 2012 at 491 Steeles Avenue East, Milton, Ontario.

ON READING the affidavits of Gillian Silverhart, sworn May 4, 2012, May 23, 2012, June 19, 2012, August 21, 2012, October 22, 2012 and November 29, 2012, and the affidavit of the respondent sworn May 23, 2012, filed, and on hearing the submissions of counsel for the applicant and the submissions of the respondent in person;

1. THIS COURT ORDERS and declares that the respondent has persistently and without reasonable grounds instituted vexatious proceedings and conducted proceedings in a vexatious manner.

2. THIS COURT ORDERS that the respondent is prohibited from instituting any further action, application, proceeding, motion or appeal, save for an appeal from the within order, on her own behalf or on behalf of anyone else, including but not limited to Paul Serpa, Joseph Cudini and Julian Cudini, in any court without first obtaining leave of a judge of the Superior Court of Justice sitting in Milton, Ontario.

3. THIS COURT ORDERS that any actions, applications, proceedings, motions and appeals, including but not limited to those set forth in Schedule “A” attached hereto, previously instituted by the respondent on her own behalf or on behalf of anyone else, including but not limited to Paul Serpa, Joseph Cudini and Julian Cudini, shall not be continued and shall be stayed, except with leave of a judge of the Superior Court of Justice sitting in Milton.

4. THIS COURT ORDERS that any application for leave pursuant to paragraphs 2 and 3 above shall be ex parte and in writing, accompanied by an affidavit that outlines the merits of the proposed action, application, proceeding, motion, appeal or step, and a copy of this Order. Unless the judge reading the ex parte application is of the view that the proposed application for leave to commence an action, application, proceeding, motion or appeal might be granted and sets a date for an oral hearing, permitting each party the right to make oral submissions and entitling the defendant, responding party or respondent to file a complete motion record, the judge shall dismiss the ex parte application.

5. THIS COURT ORDERS that a copy of this Order shall be filed with each region of the Superior Court of Justice in Ontario, including the Small Claims Courts, the Divisional Court, and the Court of Appeal for Ontario.

6. THIS COURT ORDERS that in the event that the respondent commences or launches any action, application, proceeding, motion or appeal, save for an appeal from the within order, on her own behalf or on behalf of anyone else, including but not limited to Paul Serpa, Joseph Cudini and Julian Cudini, without first obtaining leave of a judge of the Superior Court of Justice sitting in Milton, Ontario, the defendant, responding party or respondent shall be at liberty to deliver a copy of the within order to the Registrar of the court in the jurisdiction where the action, application, proceeding, motion or appeal is returnable and the said Registrar shall immediately dismiss the action, application, proceeding, motion or appeal as applicable.

7. THIS COURT ORDERS that the action commenced by the respondent in the Superior Court of Justice, Toronto, against the applicant, Chaitons LLP, Veranova Properties and Orion Disposal, Court File Number CV-12-452906, be and the same is hereby dismissed.

8. THIS COURT ORDERS that the respondent shall pay to the applicant its costs of the within application fixed in the amount of $ ­ forthwith.

This order bears interest at the rate of 3.0% per annum from its date on the costs awarded herein.

__________________________

GRAY J.

1. Ilsa Cudini and Paul Serpa v. BMO Mastercard/Mtg Centre, BMO Mastercard and BMO LOC, Toronto Small Claims Court, court file number SC-11-123241-00

2. Ilsa Cudini and Paul Serpa v. Bank of Montreal, Superior Court of Justice, Brampton, court file number CV-12-1379-00

3. Ilsa Cudini v. Bank of Montreal, Superior Court of Justice, Milton, court file number 1874/12

4. Ilsa Cudini v. Bank of Montreal, Superior Court of Justice, Brampton, court file number 1549/11

5. Joseph Cudini v. Bank of Montreal, Superior Court of Justice, Brampton, court file number CV-12-2211-00

6. Joseph Cudini v. Veranova Properties, Divisional Court, Brampton, court file number DC-12-51

COURT FILE NO.: 2552/12
DATE: 2013-01-22

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

BANK OF MONTREAL

Applicant

– and –

ILSA CUDINI also known as ILSA SILVA

Respondent

REASONS FOR JUDGMENT

GRAY J.

Released: January 22, 2013