COURT FILE AND PARTIES
COURT FILE NO.: CV-12-462778
DATE: 20140324
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN: TOBY EZER, Plaintiff
- and -
ROBERT NEIL CLARK and ROXANE BRUNET-CLARK, Defendants
AND BETWEEN:
ROBERT CLARK and ROXANE BRUNET-CLARK, Plaintiffs by Counterclaim
- and -
TOBY EZER and ENIO ZEPPIERI and ZEPPIERI & ASSOCIATES, LLP, Defendants by Counterclaim
BEFORE: D.L. CORBETT
COUNSEL: Adam Pantel, for the Defendants by counterclaim, Enio Zeppieri and Zeppieri & Associates LLP
Mr Clark and Ms Brunet-Clark, self-represented
No one appearing for the Plaintiff, Defendant by Counterclaim, Toby Ezer
HEARD: March 17, 2014
ENDORSEMENT
[1] The Clarks are sued on a mortgage (the “Ezer mortgage”) arranged many years ago by their former solicitors (“Zeppieri”). The Clarks agree that they gave the mortgage. They agree that it was for $26,000. What they do not agree with was the use made of the money. $5,000 went to them to pay some bills. The balance was disbursed by Zeppieri, apparently mostly to pay legal expenses the Clarks incurred with Zeppieri on another piece of litigation.
[2] That other piece of litigation had its origin back in the 1990’s. Mr Clark found that his ability to borrow money was impaired because of adverse credit reports made about another man also called Robert Clark. The Clarks tell me this happened many times and became a big obstacle for Mr Clark. Eventually Mr Clark sued Equifax (a credit reporting agency) and Bank of Nova Scotia over the adverse credit reports made about him. Mr Zeppieri acted for Mr Clark on this case.
[3] The Clarks complain that Zeppieri agreed to act pro bono, or for payment of only modest fees, given the unusual nature of their case. But in the end, the Clarks feel that Zeppieri charged too much and certainly more than was agreed, and that Zeppieri achieved an unsatisfactory result in the litigation.[^1] In respect to the Ezer mortgage, the Clarks say it was raised because they were not otherwise able to obtain credit, and they needed the money to pay their daily bills – they did not arrange it to pay Zeppieri,
[4] At heart of the Clarks’ counterclaim they allege that they should not have to pay the mortgage – Zeppieri should have to pay it because he wrongly kept most of the proceeds of the loan. The Clarks make many other allegations, but this is the heart of the counterclaim.
[5] The problem is – for the Clarks – that this motion is not about the merits of their claims against Zeppieri. It is about a preliminary issue. And that preliminary issue is straightforward: have the claims against Zeppieri already been finally decided against the Clarks?
[6] The mortgagee, Toby Ezer, apparently advanced the mortgage funds from a self-directed RRSP. In prior legal proceedings commenced in April 2007, Ezer sued on the mortgage in the name of the trustee of the RRSP, CIBC Trust Corporation. In that proceeding, the Clarks defended and counterclaimed against Zeppieri. The counterclaim asserted the same claims that are raised against Zeppieri in the current proceeding. In the prior proceeding, Zeppieri moved to have the counterclaim dismissed on the merits on various bases. A. O’Marra J. agreed with Zeppieri and struck out the counterclaim without leave to amend:
… summary judgment is granted on the basis that there is no genuine issue for trial. Further, it is plain and obvious the action cannot succeed. The pleadings are struck out and the action is dismissed on the grounds that the pleadings are frivolous and vexatious and to permit the action to proceed would be an abuse of the process of the court.[^2]
This decision was made on February 20, 2009 and is a final decision on the merits. It cannot be pursued again.
[7] In oral argument, Mr Clark candidly indicated that he believes A. O’Marra J. was wrong. He also believes that A. O’Marra J. misunderstood some of the facts. And Mr Clark believes that he did not have a full opportunity to present his case to A. O’Marra J. If Mr Clark felt the decision was wrong or unfair, he was entitled to appeal it. Subject to that, and once all appeals had been exhausted, the case was decided. Justice A. O’Marra’s decision disposes of the claims that the Clarks are trying to pursue now.
[8] During oral argument, I asked if anything had happened since the decision of A. O’Marra J. that the Clarks rely upon as a basis to pursue a claim against Zeppieri now. They told me several things, none of which would permit them to counterclaim against Zeppieri in respect to the mortgage.
[9] Mr Clark mentioned that the first proceedings were improper because they were instituted in the name of CIBC Trust without the authority of that company; the current proceedings have been started by the mortgagee in her own name. Mr Clark sees something sinister in this, which I do not. Even if it was improper for Ezer to bring the first proceeding in the name of CIBC Trust, that has nothing to do with the merits of the Clarks’ counterclaim against Zeppieri. Mr Clark insinuated that Zeppieri was behind the use of CIBC Trust’s name, and that he did this to somehow enhance the credibility of Ezer’s claim. This argument is without merit: the mortgage was advanced, with the agreement of the Clarks, and was in default, so why could it possibly matter whether the claim was asserted by the trustee of the RRSP or in the name of the RRSP-holder? And anyway, none of this affects the claims made by the Clarks against Zeppieri.
[10] The Clarks told me that in prior proceedings, counsel for Zeppieri had “made faces to them” in court to try to intimidate them. This may have been a basis to complain to the presiding judge at that time; it is not a basis for a legal claim. And it has nothing to do with whether the Clarks have a claim that Zeppieri should be responsible for paying the Ezer mortgage.
[11] The Clarks told me that someone in Zeppieri’s office called CIBC Trust to see if it had obtained proof of insurance of the Clarks’ home. This, itself, would not be wrongful conduct. The Clarks advised that they had been told that the person from Zeppieri’s office went further and suggested that the Clarks might deliberately “torch” their house, presumably to frustrate efforts to collect on the Ezer mortgage. This would be a rather absurd thing for the Clarks to do if there was no insurance on their home – they would lose all their possessions as well as any equity in their home, and of course would also risk criminal prosecution. All to frustrate collection of a $26,000 mortgage? In any event, assuming without deciding that such a conversation took place, it still has nothing to do with a claim that Zeppieri should be responsible for paying the Ezer mortgage.
[12] The Clarks told me that they would like to assess Mr Zeppieri’s accounts. They accurately described the process required – an application to a judge to get an extension of time for an assessment more than one year after the solicitor’s account was paid. This issue is not before me. I did caution the Clarks that it is close to ten years since the final Zeppieri account, and they should not count on a judge extending the time for such a long period. But that is for another court on another day if the Clarks decide to pursue it. And assessment of the Zeppieri account would not be a basis to make Zeppieri responsible for paying the Ezer mortgage.
[13] What has changed is the status of the Ezer mortgage enforcement proceedings. At the time of A. O’Marra J.’s decision, Ezer was pursuing a claim in the name of CIBC Trust, as trustee, to enforce the Ezer mortgage. Had that claim been pursued diligently, the claim on the mortgage would have been determined on the merits and the case would have been over.
[14] That is not what happened, however.
[15] Ezer neglected to bring the case to a conclusion in a timely manner, and the case was dismissed administratively. Ezer then moved before Master Short for an order setting aside the administrative dismissal. In lengthy and thoughtful reasons dated July 11, 2011, the learned Master refused to set aside the administrative dismissal.
[16] Ezer then started these proceedings, in Ezer’s own name rather than that of CIBC Trust. Although the nominal plaintiff is different, the beneficial plaintiff is the same as in the prior mortgage enforcement proceedings.
[17] I can understand why the Clarks might feel it is unfair that they cannot sue Zeppieri again and yet Ezer is suing them again. The two issues are distinct, however.
[18] First, the Clarks’ claim against Zeppieri has already been dismissed on the merits. Having been dismissed on the merits before, this claim cannot be brought again.
[19] Ezer’s original mortgage enforcement claim was not dismissed on the merits; it was dismissed administratively for failure to prosecute the action within the time frames provided in the Rules. An administrative dismissal, by itself, does not prevent a plaintiff from starting the process all over again, because there has not been a decision on the merits. And the new proceeding places the Clarks in roughly the same position they were in immediately after the dismissal of their counterclaim by A. O’Marra J.: they are defendants in a mortgage enforcement action brought by Ezer, without recourse against Zeppieri.
[20] There is one further point that should be made, comparing the position of the Clarks against Zeppieri, and their position defending the claims by Ezer. Master Short refused to set aside the administrative dismissal of the first mortgage enforcement proceeding. The effect of Master Short’s decision on Ezer’s ability to pursue a fresh claim is an open question, and one that is not before me. As well, the dismissal of the first mortgage enforcement proceeding could give rise to a limitations defence for the Clarks as against Ezer. Again, this issue is not before me.
[21] For the purposes of this motion, the point is this: the counterclaim against Zeppieri has been decided on the merits and may not now be reopened. This is unaffected by the status of the claim by Ezer against the Clarks. The history of these proceedings may afford the Clarks a defence against Ezer, and it may not: that is for another court, on another day.
[22] Finally, I wish to comment on the hearing of this motion.
[23] The moving parties delivered slender materials – not surprising since the issue on the motion is straightforward.
[24] The motion was returnable in August 2013. It was adjourned because the court file was lost (Mr. Clark thought there might be something sinister in this, but hardly so, since delay did not disadvantage him and the lost materials were easily replaced). The motion was adjourned to January 2014. It was adjourned again because Mr. Clark felt he needed 3.5 to 4.0 hours to make his submissions. The motion was then adjourned to March 17, 2014 for four hours.
[25] The Clarks filed a three volume affidavit of documents. They did not file any responding affidavit. They did not file a factum. At the outset of the motion, Mr. Clark advised that he had an affidavit for me. I allowed him to pass it up. He provided a copy to his opponent at the same time. Mr. Clark advised that he had been given materials late by his opponents many times in the past. This seemed to be his justification for providing his evidence on the day of the hearing when the motion had been pending for seven months.
[26] The late affidavit was not much help. The first two pages set out some general principles concerning fairness, the Charter, the federal Bill of Rights. Then there are many pages of bald assertions that Zeppieri breached various Rules, committed various criminal acts and engaged in other blameworthy conduct. The lack of particularity rendered this portion of the affidavit largely useless.
[27] On the strength of the written record, Zeppieri established that these matters had been decided already. Nonetheless, I wanted to be sure that there was nothing overlooked.
[28] Mr. Clark then tried to make oral submissions. Mr. Clark advised that he has a grade 10 education, and that he was under great stress and had medical advice to avoid anything so stressful as court appearances. He showed me a note from his doctor.[^3] As a matter of common sense, it is stressful to face litigation during which one may lose the family home. For someone with a history of anxiety and stress-related conditions, it would be all the worse. I commented that it could be even more stressful for this to drag out longer. The Clarks were here now; best to get through this. To this the Clarks agreed. Best to get this over with, one way or another.
[29] The oral submissions were quite opposite to the late-filed affidavit. They were generally about particularized incidents that were not tied to the issues before the court. They stretched back in time to the mid-1990’s forwards. Most of these submissions concerned background (the nature of the claim against Equifax), and events at the time the Ezer mortgage was given. None of the arguments was supported by affidavit evidence, but I permitted the Clarks to make them as part of my consideration as to whether I needed further evidence to decide this motion fairly. Many of the arguments were self-defeating or of ambiguous assistance to the Clarks.[^4]
[30] This went on for a long time and became frustrating, both for the court and for Mr. Clark. I was concerned that I was not getting the information I needed to decide if there was a basis to permit the Clarks to go behind the decision of A. O’Marra J. Mr Clark was obviously concerned that he was not being given a chance to describe, in proper detail, what he considers to be the manifest injustice of his treatment by Zeppieri. I tried several approaches but could not convince Mr Clark that his sense of injustice was not what the motion was all about.
[31] Eventually Ms Clark took over and I started to get a digestible narrative with shape and progression. But Mr. Clark kept interrupting – to supply dates, provide details, correct a point. I asked Mr Clark to stop this several times. That did not work. I directed him to stop and warned him that I would send him from the room if he did not follow my instruction. This also proved insufficient. And so eventually I sent Mr. Clark from the room, over Mr. Clark’s vehement objection. His general objection was a reasonable one – as a party he has a right to be present throughout his case. But where his conduct disrupts the hearing, an exception can be made.
[32] After I heard from Ms Clark in Mr Clark’s absence, we took a long break so that Mr. Clark could listen to the tape of what had been said in his absence. Mr. Clark then had a chance to make further submissions. I imposed a deadline on Mr Clark of 1:00 pm. As it turned out we finished at 1:15 pm, having spent all morning on a motion that should have taken half an hour or so, and without having spent any time hearing from the moving party.
[33] During Mr Clark’s final submissions, Mr. Clark said that he wanted a lawyer and asked me to appoint one on his behalf. I told him I would not do that. Legal Aid would not respond to a case such as this one. There is no general constitutional right to be supplied with a lawyer in civil litigation.
[34] The counterclaim against Zeppieri was decided by A. O’Marra J. in 2009. Nothing material has changed since. The counterclaim before me is the same as the claim dismissed by A. O’Marra J. It has been decided already and may not be brought again. In the language of the law, it is res judicata.
[35] Order to go dismissing the counterclaim against Enio Zeppieri and against Zeppieri & Associates, LLP.
[36] Zeppieri shall deliver costs submissions in writing by April 4, 2014. The Clarks may make their written responding submissions by April 18, 2014. There shall be no reply or oral costs submissions.
[37] Approval as to form and content are dispensed with; counsel for Zeppieri shall forward the draft order to me for signature with their costs submissions. The Clarks may comment on the draft order in their response to the costs submissions.
D.L. CORBETT J.
Date: March 24, 2014
[^1]: The case against Equifax and the bank went to trial in December 2003. The trial court found for Mr Clark and awarded him $5,000 against each defendant. Mr Clark was denied costs because he failed to beat offers to settle made by the defendants in advance of trial. On appeal, the Divisional Court reversed the trial judge and dismissed the action on the basis that there is no cause of action in law known as “intrusion on financial integrity”, and that in any event there was no demonstrated financial loss to Mr Clark nor any “compensable psychological damage”.
[^2]: CIBC Trust Corporation v. Clark and Brunet-Clark, 2009 7079 (Ont. S.C.J.), per A. O’Marra J., para. 44.
[^3]: The note did not go so far as to preclude a court appearance, but rather suggested that it would be good if Mr Clark could avoid the stress of a court appearance for around two months. There was no explanation as to why stress would be reduced by this wait, or how having the appearance hang over Mr Clark’s head for another two months would have been good for him. I would not have granted an adjournment for a period of months on the strength of this note.
[^4]: For example, Mr Clark showed me a statutory declaration from the Ezer mortgage transaction in which he swore, under oath, that he was not the “Robert Clark” described in various executions. He said that one of the paragraphs in the declaration was wrong. The false statement concerned a large execution – for more than $100,000. He claimed the statement was false and that Zeppieri knew it was false, but had him sign it in order to get the mortgage financing. I pointed out to Mr Clark that the signature on the document was his own. He acknowledged this, but then said that he was “forced” to sign it. I asked him if Zeppieri was holding a gun to his head. He said yes. I asked him if, literally, Zeppieri had a gun in hand and was forcing him to sign. Initially Mr Clark said yes but then reverted to saying that he was forced to sign the document. On the basis of all of this, the soundest conclusion a court could draw is that Mr Clark knowingly signed a false statutory declaration, and that he claims his lawyer knew the statement was false and pressured him to sign it anyway. Mr Clark clearly did not understand just how devastating this conclusion would be to his own credibility. To be clear, I have not drawn any conclusions on the basis of these statements because they were not properly before me, and Zeppieri did not have a chance to respond to them. They were not relevant to the issue of whether the counterclaim had already been decided by A. O’Marra J. But they give a sense of the oral submissions.