SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-11-420829
DATE: 20130107
RE: JOHN JOSEPH AKA JOHN D’SOUZA AND PETER D’GAMA, Plaintiffs
AND:
RITCHIE JAMES LINTON, ROBERT JAGIELSKI, KRYSTYNA WOLDANSKA, AGNIESZKA WOLDANSKA, KAROLINA GILL, BOBBY MUKHTIAR GILL, POLISH CREDIT UNION, ROYAL BANK OF CANADA, A. FARBER & PARTNERS INC., THE LAW SOCIETY OF UPPER CANADA and THE SUPERINTENDENT OF BANKRUPTCY, Defendants
BEFORE: PENNY J.
COUNSEL: John D’Souza and Peter D’Gama on their own behalf
Evan Moore for the Defendants Karolina and Bobby Gill
David Silver for the Defendants Ritchie Linton and Robert Jagielski
Marek Tufman for the Defendants Krystyna Woldanska and Agnieszka Woldanska
HEARD: December 17, 2012
ENDORSEMENT
Background
[1] This matter came before me on July 31, 2012 as a motion to set aside an ex parte default judgment. The judgment, dated June 19, 2012, purports to bear my signature.
[2] The recitals to this judgment indicate that the motion was made ex parte against the Woldanskas, who had been noted in default, and that judgment was, in part, granted on the basis of “submissions” made to the court on June 19, 2012. The evidence is now clear that, on June 19, 2012, the Woldanskas had a pending motion, on notice to the plaintiffs, to set aside the noting in default. This particular fact, among many others, was not disclosed in what has now been produced to me by the plaintiffs as the alleged “supporting material” filed by them on the June 19, 2012 motion.
[3] The judgment itself purports to grant judgment against the Woldanskas for damages of $60,000 and punitive and exemplary damages of $48,000. The judgment also purports to make various declaratory orders against not only the Woldanskas but the Gills and Linton and Jagielski as well. These declaratory orders include the finding that all six of these defendants, among other things, conspired to defraud the plaintiffs.
[4] In my endorsement of July 31, 2012 setting aside the judgment purportedly signed by me on June 19, 2012, I put over to a future date the question of costs. I also extended to the plaintiffs, respondents on the motion, the opportunity to seek legal advice and representation and, among other things, to produce the original of the motion record containing my endorsement and the original of the June 19, 2012 judgment purporting to bear my signature.
[5] Further material was filed by all parties. The matter came back before me on December 17, 2012 on notice to all parties. The defendants all seek their costs on a full indemnity basis.
[6] The plaintiffs arrived late for the oral hearing on December 17, 2012 although they did make oral submissions. The plaintiffs proferred, as the reason for their lateness, that they thought the return of this motion was to be dealt with “in writing” and that it was unnecessary for them to attend. I note that there is utterly nothing in my July 31, 2012 endorsement, or in any of the defendants’ material or communications to the plaintiffs, to support this belief. The plaintiffs filed a written brief on December 24, 2012, seven days after the argument of the motion. The brief purported to provide additional information on the reasons for their lateness. This was a highly inappropriate out of court communication with the judiciary, for which no leave was sought or granted. It was also an inappropriate means of trying to put new evidence before the court – evidence that was, in any event, available to the plaintiffs on December 17, 2012. The plaintiffs’ excuse was, in my view, entirely disingenuous. In any event, neither in person on December 17, 2012 nor in their subsequent written submission did the plaintiffs seek an adjournment of the December 17, 2012 hearing.
The Action
[7] John D’Souza and Peter D’Gama are plaintiffs in an action against the vendors and purchasers of a property known as 49 Lake Crescent in Toronto (the Property). They have also sued lawyers and other entities associated with the sale of the Property.
[8] John D’Souza is apparently a paralegal licensed by the Law Society of Upper Canada. Peter D’Gama is apparently a licensed real estate agent.
[9] In June of 2012 the defendants had pending motions for summary judgment seeking to dismiss the plaintiffs’ action. The motions were returnable on June 14, 2012. Various defendants had previously been noted in default. Some of them had already obtained orders setting aside the default. As noted above, the Woldanskas had a pending motion to set aside their default, on notice to the plaintiffs.
[10] On June 14, 2012, C. Brown J. adjourned the motions for summary judgment as a result of the fact that material filed on the motions was not in the court file delivered to her before the return of the motion. A new return date was set for April 2013.
[11] There is no record in the Court’s “Complete Case History Report” of any aspect of this matter ever having come before me at any time prior to July 31, 2012.
[12] What the Complete Case History Report does show is that there was a motion brought by the plaintiffs, without notice, returnable before Master Glustein on June 19, 2012. The relief sought in the motion for default judgment appears, however, to be outside the jurisdiction of a Master. There is no record of any disposition of that motion by Master Glustein or, for that matter, by any other Master.
The Motion for Default Judgment
[13] The plaintiffs were unable to locate or produce the original motion record bearing my endorsement or the original of the judgment purporting to bear my signature.
[14] As I indicated to the parties, my invariable practice on civil motions, whether ex parte, in writing, or otherwise, is to endorse the back of the motion record with my disposition in blue ink. It is also my invariable practice, when signing orders or judgments, to sign the form of order or judgment in blue ink.
[15] What the plaintiffs did produce is a “copy” of the motion record they say they filed which has been, apparently, re-created from Word documents on their computer. The motion record is dated June 18, 2012. The record contains a 53 page affidavit sworn by Peter D’Gama and 50 exhibits.
[16] The plaintiffs also filed responding material for the December 17, 2012 return date, comprised of another affidavit of Peter D’Gama, sworn November 6, 2012, containing some 23 pages and another 50 exhibits.
[17] Mr. D’Gama’s November 6, 2012 affidavit does not address at all the questions posed by me in my endorsement of July 31, 2012, other than in paragraph 74 of the affidavit, which says:
It is therefore not surprising that the motion material before Justice Brown and Justice Penny went missing. I believe that the missing material and subsequent court adjournments only benefit the Gills and the other defendants. It appears that the Gills along with their Lawyers are successful in deceiving and manipulating both the Honourable Court and us.
No evidence whatsoever has been advanced in support of this proposition that the Gills, the other defendants and/or their lawyers, are responsible for material being “missing” from the Court’s files.
[18] In my July 31, 2012 Endorsement, I noted:
On June 19, 2012, there is an entry in the case history that a motion for judgment was on the list before Master Glustein. There is no record of the disposition of that attendance. I advised the parties that:
I was sitting in family law motions on June 19, 2012 and this matter did not appear on my door sheet;
I have no recollection of seeing any record or material from this case nor do I have any recollection of seeing the plaintiffs or of signing this order [judgment];
there is no record in the court system of this matter ever having been before me;
it would be unusual for a civil ex parte motion to be put before a judge hearing family law motions.
There is apparently no copy to be found in the court file of what the plaintiffs’ filed on their motion for ex parte judgment. I asked the plaintiffs if they had a copy of the original of [the] signed June 19, 2012 order – they said they did not because it was left in the court file.
I asked the plaintiffs if they had a copy of the motion record they filed to obtain the ex parte order. Again they said their copy was filed and they did not have it.
In the circumstances, I believe it is best to adjourn the issue of costs and any other matters arising out of this attendance today:
(a) to enable the plaintiff's time to file additional material and to try to find the original motion record bearing my endorsement and the original order bearing my signature; and
(b) to retain counsel to represent them in the continuation of the hearing of this motion to set aside the ex parte order.
[19] Not only have the plaintiffs failed to produce the original motion record, my endorsement on the record or the original order signed by me; they have provided no explanation whatsoever for how the motion allegedly came before me or the circumstances under which I allegedly signed the judgment.
[20] At first, they said the motion was in person (the judgment itself says it was). Then, they changed their story to say that it was in writing and therefore done over the counter.
[21] The day prior to the return of the defendants’ motion to set aside the June 19, 2012 judgment, the plaintiffs, without qualification, consented to set that judgment aside.
[22] Having now seen the motion record the plaintiffs purportedly put before me, and having regard to the evidence now available with the benefit of the adjournment and my directions of July 31, 2012, I make the following findings.
[23] This matter was never before me, in person or in writing.
[24] I had never seen the plaintiffs’ motion record of June 18, 2012 before it was delivered to my attention in November 2012.
[25] Prior to July 31, 2012, I had never seen the plaintiffs before.
[26] If I had seen the plaintiffs’ June 18, 2012 motion record and the requested form of judgment, under no circumstances would I ever have signed it. It grants extraordinary relief, such as exemplary damages, which I do not grant on an ex parte basis. It also grants highly unusual and prejudicial declaratory relief against other defendants in the action, besides those against whom the motion for default judgment was brought, without justification or explanation.
[27] Although the signature on the photocopy of the June 19, 2012 judgment appears to be my signature, I did not sign the June 19, 2012 judgment.
[28] No signed original of the June 19, 2012 judgment has been produced because it does not exist.
[29] No signed endorsement on the original motion record has been produced because it does not exist.
[30] I find that the plaintiffs, or one of them acting in concert with the other, falsified my signature on the June 19, 2012 judgment by cutting and pasting a copy of my signature from another order or endorsement (unknown) onto this form of judgment.
Costs
[31] The plaintiffs sent copies of the fake June 19, 2012 judgment to the defendants, representing it to be an authentic, valid judgment of the court. They used the judgment to threaten serious consequences, including criminal proceedings.
[32] The plaintiffs also sent copies of the fake June 19, 2012 judgment to three regulatory bodies in support of professional complaints, again, in each case, representing the judgment to be an authentic, valid judgment of the court.
[33] Copies of the fake judgment were sent by the plaintiffs to the Law Society of Upper Canada in respect of a complaint against Linton; to the Real Estate Commission of Ontario in respect of a complaint against Helena Pawlowska, Karolina Gill’s mother; and to the Financial Services Commission of Ontario in respect of a complaint against Mr. Gill, who is a licensed mortgage broker subject to FSCO jurisdiction.
[34] In the case of Mr. Gill, the plaintiffs’ complaint was resubmitted in October 2012, after the plaintiffs had already consented to setting aside the June 19 judgment and after my order issued on July 31, 2012 in fact setting the June 19, 2012 judgment aside.
Law
[35] In Schreiber v. Mulroney https://www.canlii.org/en/on/onsc/doc/2007/2007canlii34441/2007canlii34441.html 2007 34441 (ON SC) Newbould J. summarized the law relating to awards of full indemnity costs:
Rule 57.01(4) makes clear that a judge has authority to award costs on a substantial indemnity basis or in an amount that represents full indemnity. It is this higher scale of full indemnity that Mr. Prehogan contends should be used in this case.
The test for awarding what was earlier in Ontario referred to as costs as between solicitor and client and now under our rules as costs on a substantial indemnity basis is succinctly stated in Orkin, The Law Of Costs, 2nd Edition at para. 219 as follows:
Costs on the solicitor and client scale should not be awarded unless special grounds exist to justify a departure from the usual scale
As the court said in Foulis v. Robinson:
Generally speaking an award of costs on a party and party scale to the successful party strikes a proper balance as to the burden of costs which should be borne by the winner without putting litigation beyond the reach of the loser. There are, of course, cases in which justice can only be done by complete indemnification for costs.
An award of costs on the solicitor and client scale, it has been said, is ordered only in rare and exceptional cases to mark the courts disapproval of the conduct of a party in the litigation. The principle guiding the decision to award solicitor and client costs has been enunciated thus:
Solicitor and client costs should not be awarded unless there is some form of reprehensible conduct, either in the circumstances giving rise to the cause of action, or in the proceedings, which makes such costs desirable as a form of chastisement.
The Supreme Court of Canada has approved the following statement of principle:
Solicitor and client costs are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties.
I am not going to repeat all of the conduct of Mr. Anka taken on behalf of his client that I referred to in my reasons of August 3, 2007. That conduct elevated this case to one of the rare and exceptional cases that requires full indemnity costs to mark the disapproval of the conduct. It fully fits the meaning of the phrase “reprehensible, scandalous, or outrageous conduct” used by McLachlin J. (as she then was) in Young v. Young, https://www.canlii.org/en/ca/scc/doc/1993/1993canlii34/1993canlii34.html 1993 34 (SCC), [1993] 4 S.C.R. 3.
[36] Hackland J. also reviewed the law in this area when dismissing a claim against three judicial officers in Barlyluk (Wyrd Sisters) v. Campbell, https://www.canlii.org/en/on/onsc/doc/2008/2008canlii55134/2008canlii55134.html 2008 55134 (ON SC). He said at para. 39:
The transcript of argument of this motion will show that Ms. Townley-Smith attempted to justify the allegations in this action by providing the Court, in the context of her oral submissions, with her first hand account of her perceived struggle with the Court system in Toronto, in the Harry Potter action. When questioned by the Court she said “me and my client” are making these allegations. Apart from the impropriety of attempting to be both witnessed and counsel, the allegations being advanced in this action against three respected members of this Court and indirectly against at least 15 other judges, constitute, in my view, a scurrilous attack on the administration of justice by a member of the bar. Counsel’s documentation filed with the court and her oral submissions refer to conspiracy, skulduggery, lying, case fixing and criminality in reference to the defendants. There is no justification and no air of reality to any of these accusations.
[37] In his subsequent ruling on costs, Hackland J. said (2009 CarswellOnt 3900, at paras. 9 and 10):
I am of the opinion that this is one of the rare cases in which costs should be awarded on a full indemnity basis. As noted, I found that this action constituted a scurrilous attack on the administration of justice. The conduct of the defendants, judges of this court, was characterized by the plaintiffs as case-fixing, abuse of public office, dishonesty and deceit in circumstances where there was no basis on the facts pleaded or submissions made to the court to support such outrageous allegations. Reckless attacks on the integrity of judicial officers must be recognized as conduct requiring chastisement and deterrence.
There is ample authority for an award of full indemnity costs where unsubstantiated allegations of dishonesty, illegality, and conspiracy are advanced without merit. While full indemnity and substantial indemnity costs are an exception to the general rule and awarded only under special circumstances, allegations made or conduct by a party that is “reprehensible, scandalous or outrageous” falls within the ambit of an award full indemnity costs.
Conclusion on Costs
[38] I have no hesitation in concluding that an award of full indemnity costs is required in the circumstances of this case. I find that the plaintiffs’ conduct, in faking a judgment of this court, constitutes a scurrilous and fraudulent attack on the administration of justice. The plaintiffs’ actions amount to a contemptuous and reckless disregard for the judicial process and were calculated to obstruct or interfere with the due course of justice in these proceedings. The plaintiffs’ behaviour was “reprehensible, scandalous and outrageous.” Such reckless attacks on the administration of justice clearly constitute conduct requiring chastisement and deterrence.
[39] I find that the defendants are entitled to full indemnity costs, payable by the plaintiffs D’Souza and D’Gama forthwith. Costs are awarded as follows:
Woldanskas $14,974.60
Linton/Jagielski $10,659.35
Gills $14, 617.97
inclusive of disbursements and HST.
[40] The plaintiffs are prohibited from taking any fresh step in these proceedings until these costs have been paid in full.
Master Dash Order
[41] There is a subsidiary issue involving an order of Master Dash on April 26, 2011, obtained without notice, granting leave to the plaintiffs to register a certificate of pending litigation against the Property (the CPL order). No CPL has been registered as yet.
[42] The plaintiffs have refused or been unable to produce the original of Master Dash’s order. The court record apparently contains no original order or endorsed motion record.
[43] It appears that the CPL order of Master Dash may also be a fake.
[44] In any event, it was obtained without notice. The noting in default of the Gills was improper and constituted sharp practice.
[45] In the circumstances, my order shall issue setting aside the CPL order of Master Dash dated April 26, 2011.
PENNY J.
Date: January 7, 2013