ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-13-0104-00 and CV-13-0478-00
DATE: February 19, 2014
B E T W E E N:
Allan James: Curle
Self Represented
Plaintiff
- and -
JUANITA ELIZABETH CURLE
Defendant
Randall V. Johns, for the Defendant
HEARD: January 23, 2014,
at Thunder Bay, Ontario
B E T W E E N: )
JUANITA ELIZABETH CURLE ) Randall V. Johns, for the Applicant
Applicant )
-and- )
ALLAN JAMES CURLE )
Respondent ) Self Represented
) HEARD: January 23, 2014,
) at Thunder Bay, Ontario
Regional Senior Justice H.M. Pierce
Reasons on Motion and Application
Introduction
[1] Mr. and Mrs. Curle are estranged spouses and parents of three children. Mr. Curle also has a child from a previous relationship. Ms. Curle has two proceedings before the court. Essentially, they involve the following:
a summary judgment motion in court file CV-13-0104, pursuant to Rule 21 of the Rules of Civil Procedure, seeking to dismiss Mr. Curle’s action on the grounds that it discloses no reasonable cause of action, is frivolous and vexatious and constitutes an abuse of process; and
an application in court file CV-13-0478, pursuant to s. 140 of the Courts of Justice Act , R.S.O. 1990, c. C. 43 declaring that Mr. Curle is a vexatious litigant and prohibiting him from commencing further litigation without leave of the Superior Court of Justice.
[2] Mr. Curle resists both these proceedings. I will deal first with the summary judgment motion as it lays some of the groundwork for the application.
Summary Judgment Motion
[3] The relevant portions of Rule 21 are as follows:
21.01 (1) A party may move before a judge,
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,
And the judge may make an order or grant judgment accordingly.
(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,
(c) another proceeding is pending in Ontario or another jurisdiction between the same parties in respect of the same subject matter; or
(d) the action is frivolous or vexatious or is otherwise an abuse of process of the court, and the judge may make an order or grant judgment accordingly.
[4] The rule stipulates that no evidence is admissible on a motion under clause 1 (b). Therefore, for the purposes of the argument under this clause, the court will consider only the statement of claim to determine the merits of the motion. It is settled law that before a statement of claim can be struck, it must be plain and obvious that it discloses no cause of action: Hunt v. Carey Canada Inc. 1990 90 (SCC), [1990] 2 S.C.R. 959.
[5] The parties are involved in on-going matrimonial litigation in court file FS-11-0263 in the Superior Court which includes claims for custody and property division. It should be noted that there is no Family Court branch of the Superior Court of Justice situated at Thunder Bay.
[6] Despite the existence of the matrimonial litigation, Mr. Curle issued a statement of claim comprised of 102 paragraphs which he pleads is based on common law, as informed by international law. He pleads and relies on the International Covenant on Civil and Political Rights; the Universal Declaration of Human Rights; and the Vienna Declaration and Programme of Action.
[7] In its opening paragraphs Mr. Curle identifies himself as “a living man; a human being, who was “expelled from his mother, a living woman, at the geographical land mass commonly referred to as Ontario and usually inhabits the same land mass.”
[8] He describes his wife, the defendant, as “an juristic person possessing juridical personality.” He claims that he is not the same legal person as identified in the matrimonial litigation, and states that Allan James Curle, identified in the matrimonial litigation, is a legal fiction. At para. 97 of the statement of claim he pleads:
The plaintiff further states that any alleged civil marriage contract is a nullity for breach of trust and fraudulent misrepresentation perpetrated by the State to unwittingly have humans forfeit their human rights when humans, as beneficiaries, rely upon the honesty and fairness of the State, as trustees of their birthrights (human rights and fundamental freedoms).
[9] Mr. Curle argues that he did not waive his rights of “full title (legal and equitable)” to his children and so the state has no jurisdiction to make rulings binding him and his children.
[10] Mr. Curle, as plaintiff, claims the following relief, which is in the nature of custody and property rights:
(a) An order quashing the Action commenced by the Defendant , Juanita Elizabeth Curle, in the Family Court branch of the Superior Court of Justice (Court File Number
FS–11–0263) as against the Respondent, Allan James Curle.
(b) An interim and permanent Order setting aside any and all Orders pursuant to the Defendant’s Action in the Family Court branch of the Superior Court of Justice (Court File Number FS-11–0263).
(c) A Declaration that the Plaintiff possesses superior legal title (legal and equitable) to that of the Defendant, Juanita Elizabeth Curle, respecting the care, control, decision making and possession of the biological offspring of the Plaintiff and Juanita Elizabeth Curle.
(d) A Declaration that the Plaintiff possesses superior legal title (legal and equitable) as against all others respecting the care, control, decision making and possession of the biological offspring of the Plaintiff and Juanita Elizabeth Curle.
(e) A Declaration that the Plaintiff, as a matter or right, is entitled to full, complete and unfettered possession and care and control of the biological offspring of the Plaintiff and Juanita Elizabeth Curle.
(f) A Declaration that the Plaintiff, as a matter of right, is entitled to exercise full, complete and unfettered decision making respecting all matters pertaining to the biological offspring of the Plaintiff and Juanita Elizabeth Curle.
(g) An Order that all equity as between the Plaintiff and the Defendant be divided between the two parties in accordance with the amount of equity each party reasonably brought in as between the Plaintiff and the defendant, either directly or indirectly, and including contribution in kind. The determination thereof shall be undertaken in good faith between the Plaintiff and the Defendant.
(h) A Declaration that the Plaintiff in this Action and the Respondent , Allan James Curle, in the Action commenced by the Defendant, Juanita Elizabeth Curle in the Family Court branch of the Superior Court of Justice (Court File Number
FS-11-0263), are two distinct entities possessing different rights and duties.
(i) Any other relief as may be just.
[11] Paragraph 2 of the statement of claim states that the claim is made “pursuant to the authority of the Court under Section 11 of the Courts of Justice Act, R.S.O. 1990, CHAPTER C. 43.” In Mr. Curle’s submissions, he refers to s. 11 (2) of the Act which states:
The Superior Court of Justice has all the jurisdiction, power and authority historically exercised by courts of common law and equity in England and Ontario.
[12] He submits that the common law jurisdiction of the Superior Court as informed by the international law which he cited in argument applies to his claims.
[13] I have concluded that Mr. Curle’s statement of claim should be struck and his action dismissed for four reasons.
[14] First, it is plain and obvious that the statement of claim discloses no reasonable cause of action. The nature of the claims made relate to family law issues, specifically custody and property. These claims are governed by domestic statutory law, and not by common law or international law. A parent’s right to claim custody of children in Ontario is governed by the Children’s Law Reform Act R.S.O. 1990, c. C.12 , (as am.) or alternatively, the Divorce Act R.S.C. 1985, c. 3 (2nd Supp.). Custody orders are no longer available at common law. The jurisprudence relating to custody has therefore developed in accordance with statutory law and is not governed by the Maxims of Law by Bouvier in 1856, as cited in Mr. Curle’s statement of claim. There is no jurisdiction in Ontario law for an order for possession of or title to children.
[15] Second, the court has no jurisdiction to “quash” on-going matrimonial litigation (court file FS-11-0263), which encompasses claims for custody and property division between these parties and is not yet complete. If Mr. Curle takes objection to court’s jurisdiction in the matrimonial litigation, the place to raise his objection is in that proceeding. His remedy is not to start another action at common law, claiming the same relief. If Mr. Curle is aggrieved by an order made in the matrimonial proceeding, his remedy is to appeal that order in accordance with the procedures and time frames set out in the Family Law Rules. This claim is simply a device to circumvent the provisions for appeal set out in the Family Law Rules.
[16] Thirdly, the relief sought in this proceeding wholly duplicates the issues in the matrimonial litigation between the same parties. Thus it offends the rule against duplication of proceedings in Rule 21.01 (3) (c). This rule reflects a legal principle that, except for appeals authorized by law, the same issues between the same parties shall not be litigated more than once. This is so that the court’s resources are not wasted, that extra costs are not incurred, and there is no risk of inconsistent verdicts.
[17] Fourthly, the action commenced by Mr. Curle represents an abuse of process. It is plain and obvious that Allan James: Curle is one and the same person as Allan James Curle identified in the matrimonial litigation, whatever the form of his name in the title of proceedings.
[18] For these reasons, the defendant’s motion for summary judgment is granted. The plaintiff’s claim is struck and his action dismissed.
Application for Declaration that Allan James Curle is a Vexatious Litigant
[19] Section 140 (1) of the Courts of Justice Act sets out the jurisdiction of the Superior Court to declare that a person is a vexatious litigant. It states:
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 proceedings 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.
[20] Orders granted pursuant to section 140 curb a litigant’s access to the courts and must be granted with great care. As the court said in Dobson v. Green, 2012 ONSC 4432, para. 6, “It must be reserved for those rare cases where the normal rules of court seem unable to reasonably control a litigant.” For the reasons set out below, I find that this is such a case.
[21] The court in Dobson, para. 7, characterized the vexatious litigant in this way:
Generally speaking, vexatious litigants often share common characteristics. They advance claims that are often manifestly without merit. They tend to ignore adverse rulings and procedural setbacks, such as costs orders against them. They may resort to multiple, repetitive proceedings, often against the same adversary. They will sometimes similarly engage others who present themselves as an obstacle in their path. They often launch court proceedings as if unconcerned about the financial resources invariably consumed by such actions. They tend to be litigants who, with persistence, abuse the court process for their own selfish and single-minded goals. They are typically self-represented litigants who seem intent, through a series of persistent and fruitless proceedings, on wearing down their opponents through an ongoing battle of attrition. See: O’Neill v. Deacons, 2007 ABQB 754, at para.24-25.
[22] The High Court identified some principles relating to vexatious litigation in Re Lang Mitchener et al. and Fabian et al. (1987) 1987 172 (ON SC), 59 O.R. (2d) 353 at para. 19:
(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.
[23] The court in Dobson, para. 12, determined that the court may consider relevant behaviour of the litigant both inside and outside the court room, as it may demonstrate whether the court proceedings are not bona fide
… but merely the product of someone who is “unreasonably obsessed with a cause and likely to pursue vexatious court proceedings on an indefinite basis unless stopped.
[24] I therefore consider Mr. Curle’s checkered history in other proceedings before the courts. He does not dispute it. It can be summarized as follows:
(a) In 2003, Mr. Curle sued Ms. Lowe, the mother of his first child and her parents for “mental pain and suffering” and “loss of solace” when the mother moved from Thunder Bay to southern Ontario in 1999. The claim was dismissed by me in September, 2004 for disclosing no reasonable cause of action. Mr. Curle was ordered to pay costs of $4,000 but has not done so.
(b) Mr. Curle appealed the above dismissal to the Ontario Court of Appeal. His motion for extension of time to serve the notice of appeal was refused in 2005 and he was ordered to pay costs of $750, which remain unpaid.
(c) Ms. Lowe commenced a claim for custody and other relief which was heard at Whitby, Ontario. Despite being ordered on July 6, 2004 to produce his income tax returns, Mr. Curle took the position that the order violated his rights as a natural person and refused to do so. He was found in contempt of court on March 31, 2005 and his pleadings were struck. He was ordered to pay Ms. Lowe costs in the amount of $1,000 but has not done so.
(d) In April, 2005, the Superior Court, Family Branch at Oshawa ordered Mr. Curle to pay child support arrears of $2,328, Guideline support of $396 per month, and costs of $19,000. Mr. Curle ignored this order despite being self-employed in the Norall Group of Companies.
(e) In 2011, an enforcement proceeding concerning the April, 2005 order was conducted at Thunder Bay. Mr. Curle filed a financial statement indicating he had $0 income but ultimately paid $33,194.20 to retire the arrears under that order, in order to avoid imprisonment. The costs order of $19,000 remains unpaid.
(f) In September, 2011, Ms. Curle commenced the matrimonial litigation (FS-11-0263) referred to in Mr. Curle’s statement of claim. In it, she claimed divorce, custody, child support, and other relief. Although served with notice of the case conference, Mr Curle did not appear. He was ordered to file a sworn financial statement including the last three years of financial statements for the Norall companies. Mr. Curle was also ordered to pay costs of the conference fixed at $500. He has not complied with this order.
(g) Ms. Curle was granted interim custody on September 15, 2011 subject to Mr. Curle having reasonable access, which he exercises. Mr. Curle was ordered to pay $1,000 costs but has not done so.
(h) In July, 2012, Ms. Curle moved for disclosure of Mr. Curle’s income from the Norall Group of Companies as well as retroactive and continuing child support and security for costs. Mr. Curle sought an adjournment of the motion which was granted peremptory to Mr. Curle on terms:
• that he serve and file an Answer and his responding materials by a fixed date;
• that the outstanding costs orders be paid;
• that a lump sum child support of $10,000 be paid; and
• that costs thrown away in the amount of $1,000 be paid, with all financial orders to be paid by July 31, 2012.
Mr. Curle did not comply with the conditions of the adjournment.
(i) On the return date for the adjourned motion, Mr. Curle did not appear, sending a friend instead to request a further adjournment, which was refused. On August 30, 2012, Mr. Justice Shaw made an order for income disclosure against the Norall Group, ordered child support of $1,845 per month commencing September 1, 2011 (based on imputed income of $100,000 per year), granted leave to set the case down for an uncontested hearing, and ordered Mr. Curle to pay costs of $2,500. Mr. Curle has not paid either the costs or the child support. He has not filed an answer.
(j) In December, 2012, Mr. Curle sought intervener status in the matrimonial litigation. He argued that he, Allan James of the Curle Family, was separate and distinct from Allan James Curle. He submitted that the courts had no jurisdiction over him and he was not subject to the domestic law of Canada. This motion was dismissed by Mr. Justice Wright who ordered Mr. Curle to post security for costs of $5,000 in the matrimonial proceeding, and also ordered that he was prohibited from initiating any motion in that proceeding except for a review of interim support upon filing relevant financial information. Mr. Curle was ordered to pay costs of $3,500. As of the date of this motion, Mr. Curle has not posted security for costs nor paid costs of the motion.
(k) Mr. Curle maintains that he, as a “natural person,” is not subject to the taxing powers of the government or the courts. He has refused to file tax returns or supply information. In June, 2012, Mr Curle was charged with tax evasion. Trial commenced in the Ontario Court of Justice in September, 2013. Canada Revenue Agency alleges that Mr. Curle has not filed a tax return since the 2006 tax year. In that proceeding, Mr. Curle claimed not to be the accused, “Allan James Curle,” but rather “Allan James of the Curle Family,” and asserted that he was appearing under duress.
(l) In March, 2013, Mr. Curle was charged with driving while under suspension. At his first appearance, Mr. Curle advised the presiding Justice of the Peace that he appeared under duress as “the human being Allan James Curle” and not the legal fiction to whom the offence related. He objected to the court’s jurisdiction at trial and was convicted in absentia.
(m) In August, 2013, prior to his trial for driving under suspension, Mr. Curle commenced a civil suit in the Superior Court against Her Majesty in Right of Ontario and the police officer who charged him with driving while suspended. Mr. Curle claimed damages for breaching his rights as Allan James Curle, “the natural person” or “human being.” Mr. Curle gave the prosecutor a copy of the statement claim before his trial for driving while suspended commenced. I take judicial notice of the fact that Mr. Curle’s civil action was dismissed on a motion for summary judgment, as the motion was argued before me. Costs were ordered against Mr. Curle.
(n) In addition to his conduct in the above court proceedings, Mr. Curle has opposed disclosure of his income from the Norall Group and threatened law suits against a shareholder, former director, and corporate solicitor, should they make disclosure in accordance with Justice Shaw’s order. He has threatened to sue Ms. Curle’s family law solicitor as well.
[25] Currently, there is ongoing corporate litigation in the Superior Court commenced by Mr. Curle against Ms. Curle and others, in which Mr. Curle is represented by a solicitor. Mr. Curle continues to assert that he was not legally married to Ms. Curle, notwithstanding the marriage certificate filed that certifies their marriage.
[26] The history of Mr. Curle’s appearances before the court are characteristic of a vexatious litigant, as described in both the Dobson and Lang Mitchener cases. His interventions represent a long-standing pattern of vexatious behaviour that has wasted the court’s time and that of opposing litigants and run up costs which have not been paid. He has abused the court’s process. I conclude that his litigation has been brought for the improper purpose of harassing opposing parties and not for asserting legitimate rights. He has disputed his true identity to various courts. His arguments, such as his split legal identity and the application of international law to supplant domestic statutory law have been dismissed. No reasonable person could expect these arguments to succeed. I also find that he has used the threat of litigation to intimidate others, including solicitors for other litigants.
[27] In issuing this action (CV-13-0104), Mr. Curle seeks to re-litigate the matrimonial proceedings that he refused to participate in or to circumvent the rules for appeal. He attempts to duplicate proceedings that have already been decided on an interim or final basis. Mr. Curle has ignored every adverse ruling of the court, whether to make financial disclosure, post security for costs, or to pay child support or costs. He has asked for adjournments and then not complied with the terms of the adjournment. He has launched appeals that are without merit.
[28] A declaration will issue that Allan James Curle, Allan James: Curle, and Allan James of the Curle Family are one and the same person.
[29] I am satisfied that Mr. Curle is a vexatious litigant as contemplated by s. 140 of the Courts of Justice Act. An order will issue prohibiting Allan James Curle, from instituting any further proceedings in any court, whether under the name of Allan James Curle, Allan James: Curle, Allan James of the Curle Family or by any other name or identity used or adopted by Mr. Curle without leave of a judge of the Superior Court of Justice.
[30] The applicant, Ms. Curle, may apply to the trial coordinator within thirty days to obtain an appointment to argue costs for both the summary judgment motion and the application. Costs submissions are not to exceed five pages.
Regional Senior Justice H.M. Pierce
Released: February 19, 2014
COURT FILE NO.: CV-13-0104-00 and CV-13-0478-00
DATE: February 19, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Allan James: Curle
Plaintiff
- and –
JUANITA ELIZABETH CURLE
Defendant
B E T W E E N:
JUANITA ELIZABETH CURLE
Applicant
- and –
ALLAN JAMES CURLE
Respondent
REASONS ON MOTIONS AND APPLICATION
Pierce J.
Released: February 19, 2014
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