ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Dr. Renata Leong and Dr. Rajiv Shah

Applicants

• and -

Elena Ryabikhina and Nadejda Ryabikhina

Respondents

Christopher M. Hubbard and Katherine Booth, for the Applicants
Elena Ryabikhina and Nadejda Ryabikhina, in person
Jonathan Gutman for St. Michael’s Hospital, applicant in CV-12-449608

HEARD: April 23. 2014

F.L. MYERS J.

REASONS FOR DECISION

[1] In this application, Dr. Renata Leong and Dr. Rajiv Shah seek an order declaring the respondents to be vexatious litigants under section 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43. These Reasons for Decision apply as well to the related application brought by St. Michael’s Hospital under Court File No. CV-12-449608 that was heard with this application. The doctors and the hospital seek to bring a final end to the lengthy period of litigation detailed below.

[2] In 2005, Elena Ryabikhina believed she was defamed by Drs. Leong and Shah. Elena Ryabikhina believes that the doctors wrongly reported her to the Children’s Aid Society (“CAS”) shortly after the birth of her first child, Valerie Ryabikhina. I have no doubt that Elena Ryabikhina and her mother, Nadejda Ryabikhina, view the reports to the CAS as unjust, embarrassing, insulting and even traumatic events. They were so upset that they commenced five lawsuits in 2007 and 2008 against the two doctors, St. Michael’s Hospital, one of its nurses, the CAS and others. All of the lawsuits arose from the same events although each is pleaded slightly differently. One or the other or both of the mother and daughter are plaintiffs in each action and they joined the infant child as a plaintiff in one action.

[3] The Ryabikhinas have no lawyer. They have represented themselves in these legal proceedings. It became apparent early in the procedural history of the five cases that the Ryabikhinas would be aggressive advocates for their positions. But they had no experience or facility in managing a lawsuit under the Rules of Civil Procedure. They brought numerous motions that had little or no merit or at least could not do what they hoped to achieve from bringing the motions. As early as June 12, 2009, Mr. Justice Colin Campbell ordered that the Ryabikhinas could bring no more motions in at least three of the actions. More is written of this below.

Summary Judgment Motions

[4] On December 10, 2009, at the request of the applicant doctors, Horkins J. as delegate for the Regional Senior Justice, assigned Belobaba J. to hear all motions in all of the cases. Belobaba J. speaks Russian which allowed him to communicate directly with Nadejda Ryabikhina who otherwise requires an interpreter at all court hearings.

[5] By order dated July 5, 2010, Belobaba J. granted a motion for summary judgment and dismissed one of the Ryabikhinas’ actions. Belobaba J. found that the reports to the CAS of which the Ryabikhinas complained had been made in accordance with the provisions of the Child and Family Services Act, R.S.O. 1990, c. C.1. The statute requires professionals to report to the CAS a child whom they have reasonable grounds to suspect may be in need of protection. Justice Belobaba decided that because the law requires professionals to report to the CAS, the defence of qualified privilege applies in the Ryabikhinas defamation actions. Put more simply, the law of Ontario does not let a person sue a doctor for reporting her to the CAS where the law requires the doctor to make the report. One can understand parents and caregivers feeling very upset on being reported to the CAS. But our society chooses to protect children whom professionals reasonably suspect to be in need of protection ahead of protecting the feelings of their parents and caregivers in those circumstances.

[6] In October 2010, Dr. Leong moved before Belobaba J. for summary judgment in a second action, this one having been brought against her by Nadejda Ryabikhina. Dr. Leong swore an affidavit stating that in September, 2005, Elena Ryabikhina brought her two-week old baby to the Family Practice Unit at St. Michael’s Hospital. The baby was vomiting after each feeding and was losing weight. Dr. Leong requested a consultation with the pediatrics department of the hospital, but she also suggested that Elena Ryabikhina take her baby to the emergency room at the Hospital for Sick Children. Elena Ryabikhina expressed a concern about that hospital so Dr. Leong advised her to attend the after-hours clinic at North York General Hospital. The doctor gave Elena Ryabikhina a referral requesting an urgent consultation with pediatrics and emphasized the importance of taking the baby to the hospital if she continued to vomit. The next morning, Elena Ryabikhina had several conversations with a nurse at St. Michael’s Hospital. Elena Ryabikhina told the nurse that her baby had kept vomiting throughout the prior evening but that she had not taken the baby to the hospital. Both the duty physician, who was on call at the hospital at the time, and Dr. Leong, who was called by the nurse, believed that they were duty-bound to call the CAS and arranged for that to happen. Ultimately, the baby had surgery to correct pyloric stenosis or a form of blockage in her stomach.

[7] Nadejda Ryabikhina did not cross-examine Dr. Leong or submit any evidence in response to the motion for summary judgment. The Ryabikhinas’ pleadings made some reference to other allegations – for example, that while Elena Ryabikhina was still pregnant, Dr. Leong had suggested that Elena Ryabikhina put her baby up for adoption and that the doctor took pictures of the baby for that purpose. The pleadings also alleged that in making reports to the CAS the doctors falsified files. The Ryabikhinas presented no evidence on the summary judgment motion to support any of those allegations. Belobaba J. dismissed this action too. In his Endorsement of October 5, 2010, he referred to his earlier dismissal of the related action the prior summer. He explained again the issue of the doctors’ statutory duty to report children whom they reasonably suspect to be in need of protection to the CAS and that the law of qualified privilege protects doctors from being sued where they make reports to the CAS required by the law.

[8] On March 22, 2011, the Court for Appeal for Ontario dismissed the Ryabikhinas’ appeals from both of the summary judgments granted by Belobaba J.

[9] By Endorsement dated April 19, 2011, Belobaba J. again granted summary judgment to the doctors, the hospital and the nurse in one of the actions brought against all of them by both Elena Ryabikhina and Nadejda Ryabikhina as plaintiffs. In his Reasons, Belobaba J. recited the uncontradicted evidence of the doctors and their experts. He explained the law of res judicata that prevents the Ryabikhinas from continuing to litigate the same case over and over again. He reiterated the defence of qualified privilege and he dealt with a further allegation of conspiracy in that action. In an Appendix to this Endorsement, Justice Belobaba explained that he proceeded with this motion in the absence of the Ryabikhinas. He detailed his communications with the Ryabikhinas and the efforts that he made to accommodate them even after they told him that they did not wish to participate in the motions any further.

Vexatious Litigants

[10] Under section 140 of the Courts of Justice Act, where a judge is satisfied that a person has persistently and without reasonable grounds either instituted vexatious legal proceedings or conducted legal proceedings in a vexatious manner, the judge may order that no further legal proceedings may be instituted or continued by the person except with leave of the court. The section is set out in full in the appendix to these Reasons for Decision.

[11] The case law recognizes that vexatious litigants can impose serious costs and harm on the responding parties and others, including the justice system itself. In this case, the Ryabikhinas have not paid the doctors almost $49,000 that various judges have ordered them to pay to partially indemnify the doctors for legal costs. The Ryabikhinas also owe the hospital approximately $12,000 under unpaid costs awards. As I will deal with below, this does not begin to address the real costs incurred by the doctors, the hospital and others.

[12] In addition to causing costs to be incurred unnecessarily, vexatious proceedings utilize scarce court resources and time. Two days of court time were booked for these applications despite the fact that the Ryabikhinas have been told time and again by masters and judges of this Court, the Divisional Court and the Court of Appeal, that the law does not provide them with a remedy for the hurt that they claim to have suffered. See: Knights Village Non-Profit Homes Inc. v. Chartier, 2006 O.J. No. 4433 at para. 16.

[13] In addition, statements made in legal proceedings are protected from the laws of defamation. Vexatious litigants can freely make allegations that besmirch the reputations of those whom they attack. In this case, what started as allegations of defamation against the doctors, has escalated to allegations of systemic kidnapping, murder, and child pornography being made by the Ryabikhinas. Nadejda Ryabikhina confirmed in her submissions before me that she understood that she has absolute privilege as a litigant. The Ryabikhinas have used their privileged position to indiscriminately label people as racists and Nazis in their documents. They have claimed that in passing a book of authorities to a judge in court, one of the lawyers and the judge hid a bribe. They have claimed that law firms involved in these cases have hired young lawyers specifically to provide sexual services to judges. They have launched a campaign of vicious attacks against Belobaba J. that I mention below. However, I decline to dignify any of these allegations by describing them with any particularity.

[14] Courts have previously identified a number of attributes of a vexatious litigant. Not all of the criteria need be present in any given case. Moreover, other criteria may exist. The most telling features are:

(a) Bringing multiple proceedings to try to re-determine an issue that has already been determined by a court of competent jurisdiction;

(b) Rolling forward grounds and issues from prior proceedings to repeat and supplement them in later proceedings including bringing proceedings against counsel who have acted for or against them in earlier proceedings;

(c) Persistent pursuit of unsuccessful appeals;

(d) Failure to pay costs awards of prior proceedings;

(e) Bringing proceedings for a purpose other than the assertion of legitimate rights, including to harass or oppress others;

(f) Bringing proceedings where no reasonable person would expect to obtain the relief sought.

See: Re Lang Michener et al. and Fabian et al., 1987 172 (ONSC) at pp. 5 and 6; Landmark Vehicle Leasing Corporation v. Marino, 2011 ONSC 1671, at para. 38.

[15] The Ryabikhinas’ conduct has exhibited all of the foregoing factors. They brought five lawsuits seeking the same relief. They have tried to claim the same relief in applications for judicial review, in motions in appellate courts and, yet again, in a counter-application brought in these proceedings (that has been stayed by order of Himel J. pending the outcome of these proceedings).

[16] After having been unsuccessful initially on the merits of their claims before Belobaba J. and in the Court of Appeal, the Ryabikhinas persisted. In assessing costs of the third unsuccessful summary judgment motion on May 20, 2011, Belobaba J. noted that the outcome must have been obvious to the Ryabikhinas. (See factor (f) above)

[17] At about that time, the Ryabikhinas commenced a campaign of harassment against Belobaba J. that can only be described as despicable. After the third grant of summary judgment against them, they brought a new application to contest the summary judgment motions under the Charter of Rights and Freedoms alleging, among other things, that Belobaba J. had asked them for a bribe. On May 20, 2011, Himel J. instructed the Ryabikhinas that the process to challenge a judge’s decision was to appeal rather than by way of a new application under the Charter. They proceeded to try to set aside the summary judgment orders by bringing a motion for contempt of court against the applicants in the Court of Appeal. That motion was dismissed by LaForme J.A. on September 12, 2011. LaForme J.A. also relieved the applicants of the time limits for responding to the appeal until such time as they could bring a motion for security for costs against the Ryabikhinas in the appeal. By order dated November 11, 2011, McPherson J.A. required the Ryabikhinas to post security for costs of the appeal which he characterized as “frivolous”. The Ryabikhinas appealed that order to a three judge panel of the Court of Appeal. On April 26, 2012, a panel of the Court of Appeal dismissed the Ryabikhinas’ motion and found “no merit in their submissions”. The Ryabikhinas have not posted the security for costs ordered so the appeal has not been heard.

[18] As mentioned above, in one of their proceedings, the Ryabikhinas added the infant, Valerie Ryabikhina, as a plaintiff. In June, 2009, Colin Campbell J. ordered that there be no further motions in that action until the status of representation of the infant was resolved. The Ryabikhinas sought to challenge that order by bringing an application for judicial review. On April 20, 2010, the Divisional Court dismissed the Ryabikhinas’ application for judicial review because the process of judicial review is not available to review a decision of a judge of this Court. By Endorsement dated July 5, 2010, Belobaba J. ordered this action be stayed on consent of the Ryabikhinas and wrote that the Ryabikhinas had effectively abandoned the action rather than deal with the representation of the infant plaintiff. Although they had been ordered to bring no motions and then consented to the stay of the action, on January 2, 2014, with only minimal notice to the applicants, the Ryabikhinas brought a motion for default judgment in this action. Penny J. dismissed the motion and prohibited the Ryabikhinas from bringing any further motions in that proceeding except to appoint a litigation guardian for the infant plaintiff (as Campbell J. had already done in 2009). Penny J. noted as well:

I agree the motions are part of a long history of needless and ill-conceived motions. This motion was significantly in non-compliance with the Rules of Civil Procedure and prior orders of the court.

The Conduct of these Applications

[19] These vexatious litigant applications had initially come on for hearing before Justice J.A.B. MacDonald J. in June, 2012. MacDonald J. adjourned the applications to allow the Ryabikhinas to move before a master in connection with several procedural matters that they raised. One of the issues that they sought to raise was whether the infant, Valerie Ryabikhina, should be added as a party in these vexatious litigant proceedings. On October 2, 2012, Master Graham adjourned the Ryabikhinas’ motion for that relief in order to provide notice to the Office of the Children’s Lawyer at the Ministry of the Attorney-General. Nadejda Ryabikhina also raised with the Master an issue as to whether she was a party under disability. She apparently had come to believe that if she was found to be under a disability, costs could not be awarded against her. To support her argument before Master Graham, Nadejda Ryabikhina relied upon statements in the record in which Dr. Leong and others are quoted as reporting to the CAS that Nadejda Ryabikhina suffered from paranoia and other mental disorders. As discussed below, these very same findings form the basis of Nadejda Ryabikhina’s most vociferous complaints against the doctors. Faced with an issue of Nadejda Ryabikhina’s competence, Master Graham therefore also required that notice of the adjourned motion be provided to the Public Guardian and Trustee.

[20] The Ryabikhinas appealed from Master Graham’s order adjourning their motion and requiring notice to the relevant government officials. The applicants brought a motion to quash the appeal that was heard by Roberts J. In her decision dated January 28, 2013, reported at 2013 ONSC 606, Roberts J. found, in part:

[16] … for the reasons set out below, the Ryabikhinas’ appeals are wholly without merit; frivolous, vexatious and an abuse of process.

[20] … Nadejda Ryabikhina herself had raised the issue of her mental capacity before Mr. Justice MacDonald and Master Graham and had asserted that the applications could not proceed and no orders could be made against her in the absence of a litigation guardian.

[22] It is significant that Nadejda Ryabikhina has since changed her position, likely to try to bolster her appeal. She now claims that she is not a person under any physical or mental disability and is “mentally healthy”. She also confirmed to me that she does not want or need to be represented by a litigation guardian.

[24] … Further, the Ryabikhinas’ scandalous and completely unfounded and reprehensible written allegations of fraud, deceit and “planned 1st degree murder” against the parties and their counsel, which Ms. Nadejda Ryabikhina repeated throughout her oral submissions, also justify an award of costs on a substantial indemnity scale.

[28] … The Ryabikhinas show little respect for the Court, its officials or its orders. They have brought several proceedings against the applicants arising out of the same factual circumstances, all of which have been disposed of by way of stay, discontinuance or summary judgment. They have failed to pay costs orders made in related proceedings. Again, the present appeals from Master Graham’s Orders are wholly without merit.

[29] Nadejda Ryabikhina made her ongoing disdain for the court process very clear during the hearing before me. She continuously heaped outrageous insults on counsel for the parties and even on Master Graham because they did not agree with her position …

[30] In order to ensure that these applications and the Ryabikhinas’ motions proceed expeditiously and without further delay, I order that the Ryabikhinas not be permitted without leave of the Court to initiate any further motions, except to return the Ryabikhinas’ motions before Master Graham, until they pay in full the costs orders I have made in favour of the applicants.

[21] Despite being told by the applicants’ counsel that under the Rules of Civil Procedure they need permission or leave to appeal the procedural order of Roberts J. to the Divisional Court, the Ryabikhinas purported to appeal without seeking leave. By order dated March 20, 2013, Aston J. quashed the appeal for that reason. The evidence before me is that at the hearing of the motion to quash, Nadejda Ryabikhina said that she intended to continue to seek relief by way of appeal because she had been prohibited from requesting further relief by way of motion by Justice Roberts’ order. Good to her word, on October 17, 2013, Nadejda Ryabikhina moved to a three judge panel of the Divisional Court to seek to set aside the order of Aston J. quashing her appeal. Her affidavit and factum in that proceeding were filled with unsupported vitriol that can only have been written to harass and punish those at whom the statements were aimed. It is significant, in my view, that the essence of the initial claims by the Ryabikhinas was that they were defamed. It appears that they have decided that since they cannot succeed on the merits of their claims, they will get their revenge by spewing defamatory bile at anyone who happens to be in their way. Not surprisingly, the motion to set aside the order of Aston J. was dismissed. In addition, the Divisional Court granted an order sought by the applicants to prohibit the Ryabikhinas from bringing further motions in that court. In their endorsement dated October 17, 2013, the three unanimous judges of that court wrote:

[9] Proceedings which are an abuse of process do more than cause harm to the parties on the receiving end of the matters. They consume scarce resources of the court with frivolous proceedings, delaying the hearing of other matters where there are real issues requiring resolution.

[10] The history of this matter illustrates that Nadejda Ryabikhina has many of the characteristics of a vexatious litigant.

[11] She has commenced five separate actions arising out of the same events. Four of these have been stayed or summarily dismissed.

[12] The Court of Appeal has ordered security for costs on the one outstanding matter pursuant to Rule 61.06 on the ground that there is good reason to believe the appeal is frivolous and vexatious. Nadejda Ryabikhina has persisted in appealing from the order of Master Graham adjourning the motion, although she has indicated she does not intend to pursue any of the outstanding motions in the application. The documents she files are lengthy, disorganized and at times incomprehensible. She makes scandalous allegations against judges who do not rule in her favour. These are mirrored by equally scandalous allegations against opposing counsel. She has been ordered to pay over $34,000 in costs in nine separate orders which remain outstanding. Roberts J. ordered that Nadejda Ryabikhina could not bring any further motion until the costs were paid or leave was granted. Roberts J. aptly characterized the appeal as frivolous and without merit.

[13] There is good reason to believe Nadejda Ryabikhina will bring further vexatious and frivolous appeals or motions in the Divisional Court unless the Court exercises some judicial control.

[22] On February 7, 2013, Low J., as designate of the Regional Senior Justice, appointed Himel J. to case manage these applications. On June 18, 2013, Himel J. gave a number of directions to try to bring these applications to a hearing on the merits. First, she required the Ryabikhinas to bring an interpreter to all hearings. Next, she noted that at the time there was no issue about Nadejda Ryabikhina being a person under disability so that no litigation guardian is required. Himel J. wrote that Nadejda Ryabikhina has confirmed to the court that she does not wish to proceed with any of the motions that she had brought before Master Graham. Therefore, Himel J. ruled that the motions would not be scheduled and no preliminary matters need to take place before these applications can proceed. Himel J. set a timetable for the delivery of responding material and examinations, if any, and scheduled the applications to be heard on April 23 and 24 for no more than two days. Finally, Himel J. ordered that “Further to the order of Roberts J., and pending hearing of the applications under s.140, no further motions may be brought by the respondents without leave of the court and until the outstanding costs awards are paid.” By my count, that was the fifth time that the Ryabikhinas had been prohibited from bringing motions.

[23] A final case conference was held before Himel J. on January 17, 2014. At that hearing, Himel J. advised that she had learned from the Court staff that the Ryabikhinas had unilaterally scheduled a hearing of an application involving a purported constitutional question regarding the need to name the infant, Valerie Ryabikhina, in these applications. They had given no notice to applicants. Himel J. vacated the date for that hearing. She ruled that the dates of April 23 and 24, 2014 for the hearing of these applications were peremptory and she deferred further steps under the Ryabikhinas’ counter-application until after these applications are resolved. Lastly, Himel J. ruled that the foreign address for service that had been provided by Elena Ryabikhina is a valid address for service.

[24] I note that the Ryabikhinas’ factum for this application repeats many of the worst allegations against judges, lawyers, doctors, CAS workers and others with whom the Ryabikhinas have come into contact over the years in this matter. I should also note that along the way they have made numerous complaints to professional bodies, the Ontario Human Rights Commission, the Canadian Judicial Council and the Toronto Police Services Board.

The Hearing of these Applications

[25] At the commencement of argument of these applications, Nadejda Ryabikhina asked that I add the infant Valerie Ryabikhina as a party and hear the counter-application. She understood that Himel J. had refused that request previously and advised me that she has now sued Himel J. personally in the Federal Court of Canada to challenge that decision. Absent a successful appeal of the ruling of Himel J., I ruled that all that was before me was the applications and not the counter-application.

[26] Nadejda Ryabikhina also advised me that she has recently brought four applications for leave to appeal to the Supreme Court of Canada, with a fifth to follow shortly, concerning the dismissal and stay of the five initial actions several years ago. She argued that those cases cannot be considered final and therefore she cannot be considered a vexatious litigant. The two issues are not related.

[27] Nadejda Ryabikhina also objected to my proposed order of hearing submissions from the parties. I determined that both applicants would proceed first and the respondents would then have one opportunity to respond to both. Nadejda Ryabikhina objected and demanded that each application be heard separately. I declined to accept that proposal as it inefficiently duplicated time. I allowed both Ryabikhinas to speak once at the hearing until each had finished what she had to say.

[28] Nadejda Ryabikhina objected to the applications proceeding unless there was first a “fact-finding” concerning her allegation that Dr. Leong wrongly told the CAS that she had diagnosed Nadejda Ryabikhina as being mentally ill. I ruled that I would hear the argument and if any facts were in dispute that required resolution, I would deal with them at the time.

[29] The Rybikhanas each made submissions at some length. They repeated the bulk of their allegations but presented no admissible evidence to rebut the applicants’ evidence or to respond in any intelligible way to the issues in the proceedings.

[30] The bulk of Nadejda Ryabikhina’s two hours of submissions were aimed at her demand to have Dr. Leong come to court with all of her documents and the hospital’s documents to prove (or disprove) that Nadejda Ryabikhina is mentally ill. Nadejda Ryabikhina says that she was a doctor in her home country and she blames Dr. Leong for her inability to sit for her medical boards and practise as a doctor in Canada. She asked me to grant a declaration of right under section 97 of the Court of Justice Act that under the Mental Health Act, R.S.O. 1990, c.M.7, she is not mentally ill. She also asked me to find that Dr. Leong forged records about Nadejda Ryabikhina’s health and therefore the doctor should go to jail for two years and/or be fined up to $250,000. None of that is properly before me today in these vexatious litigant applications. I do not need to make any findings concerning Nadejda Ryabikhina’s mental health in these proceedings. I therefore do not need to deal with her request for “fact-finding” and I decline to do so. I note that as was mentioned by Roberts J. too, Nadejda Ryabikhina changes her position as it suits her. While obviously very upset at having been labelled as mentally ill, she also relies on Dr. Leong’s alleged statement to the CAS to claim that she is a person under disability against whom costs orders cannot be made. She repeated that submission before me seemingly unaware of the irony and obvious opportunism in relying on the truth of the claim that she deeply resents and is the object of her repeated attacks.

[31] Nadejda Ryabikhina confirmed to me that she has asked every judge of this Court, the Divisional Court and the Court of Appeal before whom she has appeared (including me) for a declaration that she is not mentally ill. I tried to show her that the issue before me was not whether Dr. Leong should be compelled to come to court to inquire about Nadejda Ryabikhina’s mental health in 2005 but whether Nadejda Ryabikhina should be stopped from continuing to ask for the same relief over and over again when she has been told that the law does not have a remedy for her hurt. Her response, predictably, was to advise that she is now going to the Federal Court of Canada to ask it to engage in a judicial inquiry into the justice system in Ontario. She will also be asking the Supreme Court of Canada to grant her the declaration that she desires.

[32] Nadejda Ryabikhina submitted that she does not want to sue. She just wants to work and be a productive doctor in Canada rather than needing social assistance. She was equally clear and sincere in indicating that she will continue to fight her fight for self-esteem in the legal system purporting to unearth all manner of criminality by all involved. Her penultimate submission to me was that Canada itself will fall apart if the Province of Ontario continues to conceal the criminality that she has uncovered.

[33] Elena Ryabikhina also made submissions to me. First she argued that she is not a resident of Canada and therefore she cannot be served with process. Himel J. ruled otherwise on January 17, 2014 and that ruling has not been overturned on appeal. Moreover, I ruled that even if she resides abroad Elena Ryabikhina’s presence in court established that she had received notice of the proceedings. The Court has jurisdiction to make an order under s.140 of the Courts of Justice Act against anyone who uses the legal system in Ontario wherever they may claim to reside.

[34] I asked Elena Ryabikhina if she would provide me with a fax number or an email address so that I could ensure that she receives the result of this case. She refused saying that she does not care about the result because she can sue outside Ontario or at the United Nations despite anything this Court may order. Nevertheless her presence here and her argument suggest that she cares very deeply about these proceedings. She is convinced that she has uncovered an illicit child kidnapping scheme being carried out by St. Michael’s Hospital and that these proceedings are designed to keep her quiet. Her claim is that her baby was well until Dr. Leong gave her an outfit from an unnamed donor who was a patient at the hospital. Dr. Leong told her that the donor wanted a picture of the baby in the outfit. It was the next day when the baby began exhibiting signs of illness. Elena Ryabikhina believes that the doctor infected her baby with illicit agents in the donated clothes. When I asked if she had any medical evidence that pyloric stenosis is caused by germs, Elena Ryabikhina could only complain that she was denied a hearing on that issue because Belobaba J. granted summary judgment in her absence and that forms the next branch of her complaints.

[35] Both Ryabikhinas were quick to label as fraud decisions by Justice Belobaba made in their absence. They seized upon a trivial inconsistency between recitals of evidence in one of the Endorsements of Belobaba J. and the form of formal order which he appears to have signed. Using evocative terms like “secret motions” and even clear allegations of overt fraud against Belobaba J., they just conveniently ignore both his clear explanation of the process that he adopted and the fact that they have appealed from all of his summary judgment decisions without any success.

[36] Both Ryabikhinas raised a number of related process issues. Elena Ryabikhina claims that she cannot be named a vexatious litigant because she is only the plaintiff in a single action and the case law requires more. Both Ryabikhinas argued that s.140 only applies to a single “person” and therefore these applications cannot be brought against the two of them together. The Ryabikhinas are anything but unintelligent. When I asked if they had thought about whether Rule 5 of the Rules of Civil Procedure applied to allow claims to be brought against them together, Nadejda Ryabikhina said “That’s joinder of claims”. Their knowledge of the Rules is clear. So too is their gamesmanship in trying to use them. They have named an assortment of parties in an assortment of claims and then tried to argue for the purpose of s.140 that each is separate. But when I asked in a different context about how their allegations in one action fit into the others, Elena Ryabikhina submitted that that the proceedings are all related regardless of the identities of the specific plaintiffs and defendants in each. I agree and note that Elena is plaintiff in two actions and a moving force in all of the others with her mother.

[37] In a similar vein, Elena Ryabikhina refuses to provide a way to contact her beside except for a foreign mailing address. Yet her sole evidence to support her claim that St. Michael’s Hospital is running a child kidnapping scheme is that one or two process servers behaved aggressively at the mother’s door in trying to serve them. There is a certain convenience to trying to hinder service of process and then using the parties’ efforts to serve as grounds to allege a criminal conspiracy of international proportions.

[38] I invited both Ryabikhinas to point me to any actual evidence of a bribe having been given by a lawyer to a judge or of any criminal conspiracy among any parties to kidnap babies or of any actual threat having been made to the well-being of the infant Valerie Ryabikhina. They could point to nothing but their own bald allegations. While they complain that they have been denied a hearing on the merits, they refuse to acknowledge that the Court has ruled time and again that the absence of any actual evidence from them to support their claims has led to proper rulings that the claims have insufficient merit to warrant further hearing.

Outcome

[39] I understand that some vexatious litigants perceive an injustice and either cannot communicate their sense of injustice effectively or just cannot comprehend or accept that the legal system does not provide a remedy for the injustice that they perceive. I have read and listened to the Ryabikhinas’ arguments and understand that they feel unjustly treated because the law does not provide them with a remedy for the insults they perceive. But it is not acceptable for them to respond to their hurt in the abusive manner in which they have conducted these proceedings. Neither is the answer for them to bring yet more litigation that cannot succeed. They must now accept that their litigation must come to an end. The law provides no legal remedy for the Ryabikhinas for the events in 2005 and their conduct is easily characterized as vexatious on the criteria recognized by numerous precedents including those cited above.

[40] I released a brief Endorsement to the parties after court on April 23, 2014. I did this to pre-empt yet further court proceedings during the brief hiatus while I wrote these reasons in light of the threats by the Ryabikhinas to continue their litigation aggressively. Further, while Himel J. has ordered that Elena Ryabikhina’s foreign address is a valid address for service, I thought it desirable to ensure that Elena Ryabikhina had actual notice of the outcome of the case and not leave matters to the vagaries of mail delivery here and abroad. My Endorsement says:

This Endorsement applies as well to the related application brought by St. Michael’s Hospital under Court File no. CV-12-449609. [sic]

For reasons to be delivered in the next few days, I grant the applications and have signed orders prohibiting Elena Ryabikhina and Nadejda Ryabikhina from commencing or continuing any legal proceeding in any court without permission of a judge of the Ontario Superior Court of Justice.

Costs will be dealt with in my upcoming reasons for decision.

Costs

[41] The Applicants seek costs on a substantial indemnity basis in the following amounts:

Drs. Leong and Shah - $79,809.89

St. Michael’s Hospital - $27,814.00

[42] I have reviewed the applicants’ costs outlines and find the costs claimed by the doctors and the hospital to be reasonable and proportionate to the seriousness and procedural complexity of these proceedings (largely due to the harassing steps repeatedly taken by the Ryabikhinas). I note that neither of the sets of applicants included any claim to top up prior awards made on a partial indemnity basis as they might have done. They did not include any time for case management in respect of the counter-application. Mr. Gutman only included his own time and not his law clerk’s time. These are not high bills and reflect only a portion of the real costs borne by the applicants.

[43] Elena Ryabikhina submitted that if she was not successfully she should not be required to pay costs. She said that the doctors and the hospital have turned her life upside down. She said for the first time during her costs submissions that she is a sick woman who cannot afford to be nervous or stressed by ongoing litigation. She also noted that the action in which she is plaintiff with her mother has been stalled at the Court of Appeal since 2011 because they have never paid the security for costs as ordered. The doctors and the hospital could have had that appeal dismissed. In essence she paints herself as a victim of persecution and takes no responsibility for her ongoing vexatious proceedings and conduct.

[44] When I invited Nadejda Ryabikhina to make submissions on costs, she told me that she had been asked about costs by other judges too and the invitation was just a judges’ fraud and a game. She claimed to have been damaged by the doctors and she launched back into her attacks on Belobaba J., the doctors, the hospital and others.

[45] The Ryabikhinas had every reason to expect that if they did not succeed in these applications, costs would be awarded against them on a substantial indemnity basis. Roberts J. has already ordered costs against them on a substantial indemnity basis. They have been told time and again that their proceedings were without merit. Such misuse of the justice system demands an award of costs on a substantial indemnity basis. Therefore, I hold Elena Ryabikhina and Nadejda Ryabikhina jointly and severally liable and order them to pay to Drs. Leong and Shah jointly and severally, costs in the amount of $79,809.89 and to St. Michael’s Hospital, costs in the amount of $27,814, both sums being inclusive of disbursements and HST and payable forthwith. These costs are in addition to all pre-existing costs awards that remain in full force and effect unless and until paid in full.

[46] I invite the successful applicants to submit draft orders to me directly for signature through Judges’ Administration. The drafts should deal with costs and any other terms sought for the better administration of the orders beyond the short forms of orders that I signed at the end of the hearing on April 23, 2014. In that regard I refer counsel to paragraph 91 of the Fresh Updated Factum of doctors dated February 28, 2014 as well as the recent decision of the Court of Appeal in Teplitsky Colson LLP v. Malamas, 2014 ONCA 308. I dispense with any requirement to seek approval as to form and content of the draft orders by the Ryabikhinas.

F.L. Myers, J.

DATE: April 25, 2014

APPENDIX

Courts of Justice Act, RSO 1990, c C.43

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. R.S.O. 1990, c. C.43, s. 140 (1); 1996, c. 25, s. 9 (17).

(2)Repealed: 1998, c. 18, Sched. B, s. 5 (2).

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. R.S.O. 1990, c. C.43, s. 140 (3); 1996, c. 25, s. 9 (17).

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. R.S.O. 1990, c. C.43, s. 140 (4, 5).

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

Dr. Renata Leong and Dr. Rajiv Shah

Applicants

• and -

Elena Ryabikhina and Nadejda Ryabikhina

Respondents

REASONS FOR DECISION

F.L. MYERS J.

Released: April 25, 2014