SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-13-478015

DATE: 20140424

RE: Fraser Simpson, Plaintiff

– AND –

Institute of Chartered Accountants of Ontario, Robert Scullion, Rod Barr, Brian Hunt, Gerrard Gallant, Elizabeth Cowie, Paul Farley, Roert Gubbins, John Dourglas, Wendy McClymont, M.B/ Martenfeld, R.H. Carrington R.A. Vickers, Robert Peck, John Wright, Vincent Clifford, Marshall Sone, Jacqueline Saber, Global Payments, Garth Steele, Welch LLP, Defendants

BEFORE: Justice E.M. Morgan

COUNSEL:
Fraser Simpson, in person

Robert Rueter, for the Defendant, Institute of Chartered Accountants of Ontario

HEARD: April 23, 2014

ENDORSEMENT

[1] The Plaintiff brings a motion under Rule 59.06 of the Rules of Civil Procedure to set aside or vary the Order of Corbett J. dated February 28, 2014.

[2] As additional or ancillary relief, the Plaintiff also seeks an order removing the discipline notice relating to him from the website of the Defendant, Institute of Chartered Accountants of Ontario (the “ICAO”), as well as an order preserving and producing various materials in the ICAO files that relate to him.

[3] As explained below, it is perhaps more accurate to say that the Plaintiff brings a motion for leave to bring a motion seeking all of the above-mentioned relief. That is not exactly how the Plaintiff has framed it, but that is a necessary step given that one of the terms of Corbett J.’s Order is to require him to seek leave for any further motion or step in the proceeding.

[4] The Motion Record contains a Notice of Motion and a somewhat rambling affidavit of the Plaintiff that goes over many of his allegations against the ICAO. The Motion Record also contains a copy of the ICAO’s “Privacy” policy statement, together with a copy of a letter that the Plaintiff apparently sent to Corbett J. on February 28, 2014 – the same date as the endorsement – requesting that his motion be permitted to proceed on the merits.

[5] Turning first to the ancillary relief sought by the Plaintiff, there is nothing in the record to support the request for materials that he wishes to have preserved and produced by the ICAO. The present action was dismissed by Corbett J. as against the ICAO. Unless that Order is overturned or set aside, there is no legal context for the production of documents to the Plaintiff. The Plaintiff identifies no basis, and I can see none on my own, for ICAO documents to be preserved or produced at this stage.

[6] As for the notice posted on the ICAO’s website, the Plaintiff contends that this is highly embarrassing to him as it makes it appear that he committed fraud. He says that he needs it to be taken down, as it discourages clients from using his services and otherwise interferes with his business.

[7] Mr. Reuter, on behalf of the ICAO, explains that the notice is, in fact, the statutorily mandated notice advising the public that the Plaintiff is no longer a member in good standing of the ICAO. I agree with Mr. Reuter that there is no legal basis on which to order the removal of the notice from the ICAO website. The notice may well impact on the Plaintiff’s business, but if so that is an effect of providing the public with information that the public has a right to know.

[8] In any case, the requests for documents and for removal of the website notice were not pursued with any vigor by the Plaintiff at the hearing. There is no reason to grant leave with respect to those requests, and they can be dismissed without further consideration.

[9] Virtually all of the Plaintiff’s efforts in arguing his motion were focused on the request to set aside or vary the Order of Corbett J. That Order flows from two endorsements, one from the first appearance on December 10, 2013 and the other from the second appearance on February 28, 2014. These two brief endorsements read as follows:

December 10/13

On consent, order to go amending statement of claim. This disposes of the motion in respect to all moving defendants other than the Institute of Chartered Accountants. The Institute’s motion shall proceed on the merits.

Mr. Simpson has not paid the outstanding costs order from the Small Claims Court proceeding. This action is stayed pending his payment of those outstanding costs. This motion is adjourned to February 28, 2014, 10 a.m. before Corbett J. If the costs have not been paid by then, this action will be dismissed, at least as against the Institute. If the outstanding costs have been paid, then this motion will proceed on the merits for an estimated 1 hour. Costs of today to Feb. 28/14.

The outstanding costs have not been paid. As per my endorsement of Dec. 10/13, this action is dismissed as against ICAO.

In view of the steps taken to schedule a motion for an injunction against the ICAO, the request of the Small Claims Court on Feb. 11, 2014 to reopen that court’s file 10-83318-00, it seems apparent that Mr. Simpson will not readily accept that his claims, against ICAO, are at an end.

This court orders that Mr. Simpson not commence or take any steps in any proceeding as against ICAO or any of its agents (including without limitation its employees, board members, and solicitors) without prior leave from a Justice of this court, which may be sought initially without notice to ICAO.

Mr. Simpson is granted leave to commence and take steps to seek to appeal and/or to appeal this decision, if he wishes.

Costs of the application from Mr Simpson to ICAO fixed on a partial indemnity basis at $10,000, payable within thirty days.

Approval as to form and content dispensed with.

D.L. Corbett J.

[10] The Plaintiff has appealed Corbett J.’s ruling. The grounds of appeal, as set out in his Notice of Appeal dated March 31, 2014, are:

The Honourable Justice Corbett erred in fact and in law. The transaction at the heart of the action was a fraud and was not characterized properly by the Honourable Justice Corbett. The lower court did not have the Merchant agreement and therefore was not aware of the negligence by the institute of chartered accountants or the perjury committed by one of its directors Robert Gubbins. Dismissing the action on the basis of the lower courts cost assessment is without merit and an error in law.

[11] The present Notice of Motion is written in a way that is not easy to follow, so at the hearing I asked the Plaintiff as a point of clarification whether his motion to set aside or vary the Order is based on the same grounds as his appeal of the Order. He confirmed to me that this is indeed the case.

[12] An appeal, rather than a motion to set aside or vary, is the proper avenue for arguing that a motions judge made an error of fact and law. The question of whether Corbett J. erred in making his Order of February 28, 2014 is now pending before the Court of Appeal; accordingly, assuming that the Plaintiff perfects the appeal and pursues it to a hearing, the correctness or incorrectness of Corbett J.’s Order will be addressed in due course. A motion in this court, however, is not the proper time and place to consider that question.

[13] I also note that the Plaintiff’s submissions in the present motion are not really aimed at seeking leave, nor are they focused on the Order of Corbett J. at all; rather, his submissions amount to an attempt to argue the merits of his now dismissed action against the ICAO. For example, the one case on which he relies, and which he submits is analogous to his own situation, is the recent judgment of this court in Livent Inc. v. Deloitte & Touche LLP, 2014 ONSC 2176. At para 51 of Livent, Gans J. held that the accounting firm defendant owed a duty of care to the plaintiff and its shareholders. That line of argument may have been relevant to the Plaintiff’s claim against the ICAO, but it is not relevant to the reason that the claim was dismissed by Corbett J. That is, it does not address the matter of outstanding costs awards, which is at the core of the challenged endorsement.

[14] I am advised by Mr. Reuter that the costs referenced in the endorsement remain unpaid. Likewise, the costs ordered by Corbett J. himself at the end of his endorsement of February 28, 2014 remain unpaid.

[15] The Plaintiff also relies on Rule 59.06(2)(a), arguing that the Order must be set aside or varied (or that leave to bring a motion to that effect must be granted) as there are facts and documents which have emerged after the impugned Order was made. Specifically, he submits that a Merchant Agreement governing payment of the ICAO’s fees by credit card, which he contends he was unable to previously obtain due to the ICAO’s refusal to produce it, should have been before the court when the ruling against him was made.

[16] In making this submission, the Plaintiff appears to be referring not to the ruling by Corbett J., but to the ruling in the Small Claims Court action that preceded the present action. As Mr. Reuter explains it, the present action, now dismissed as against the ICAO, was itself a repeat of a claim brought by the Plaintiff against the ICAO that was already adjudicated and dismissed in Small Claims Court. The same issues were then re-packaged by the Plaintiff as a Superior Court action against the ICAO and a number of related Defendants.

[17] The Plaintiff’s affidavit in the present Motion Record makes it clear that the Plaintiff’s complaint is that he was unable to present the Merchant Agreement in Small Claims Court several years ago, and not that he was unable to present it to Corbett J. in the recent motion. At para 18 of his affidavit the Plaintiff quotes Judge Marchand, who presided over the trial in Small Claims Court, and then asserts that, “[h]ad the Court [i.e. Judge Marchand] the full Merchant Agreement it would have been identified that the ICAO in fact were at fault and negligent…”

[18] This allegation of a missing document is then followed in para 19 of the Plaintiff’s affidavit with the statement that, “I had made several requests for the Merchant Agreement from Ms. Cowie and GP but was denied on grounds of privilege. GP finally relented and provided the agreement to me late in 2013…” Accordingly, the Plaintiff concedes that the document was already in his hands at the time of the motion before Corbett J.

[19] On February 11, 2014 – after the initial stay of this action by Corbett J. and just before its ultimate dismissal as against the ICAO – the Plaintiff brought a motion in Small Claims court to set aside the judgment of Judge Marchand and to re-open the case against the ICAO in that forum. His ground for doing so was that a new document had allegedly surfaced that should have been before Judge Marchand – i.e. the very document that he also identifies as “new” in the present motion.

[20] The Small Claims Court motion to set aside Judge Marchand’s judgment was denied by Deputy Judge Shaw, who found the Plaintiff’s motion to be an abuse of process and made the following endorsement:

Motion dismissed for reasons given orally. The supposed document the moving party – Plaintiff – says he only recently obtained he admits he knew about throughout the time of his suit, but says the Institute never produced…

[21] In other words, the Plaintiff has already tried and failed to re-open the Small Claims Court case against the ICAO on the basis that “new evidence” – which turns out to have long been available – had supposedly emerged. The Plaintiff now appears to be trying the very same approach in this court.

[22] In fact, there is no new evidence or new document that has emerged; certainly there is no new evidence or document that is relevant to the ruling by Corbett J. or that has emerged after that February 28, 2014 ruling. Rule 59.06(2)(a) therefore does not assist the Plaintiff in setting aside or varying the Order of Corbett J.

[23] As noted at the outset, Corbett J. specifically ordered that the Plaintiff “not commence or take any steps in any proceeding as against ICAO or any of its agents (including without limitation its employees, board members, and solicitors) without prior leave from a Justice of this court…” Mr. Reuter advises me that the Plaintiff has nevertheless arranged repeated appearances at Motions Scheduling Court, including one tomorrow – Friday, April 25, 2014.

[24] As Mr. Reuter explains it, Motions Scheduling Court is the one place in which no leave can be sought, since it is the first address to which a party must turn in simply getting a date for a hearing. While Corbett J. specified that leave to take any further step should be sought by the Plaintiff in the first instance without notice to the ICAO, the Plaintiff always puts ICAO’s counsel on notice of an appointment at Motions Scheduling Court since nothing can be scheduled in the absence of one side or its counsel.

[25] Mr. Reuter submits that the reason that the Plaintiff has repeatedly booked appearances at Motions Scheduling Court is, quite simply, to harass the ICAO and its counsel. He explains that this type of tactic is what drove Corbett J. to order, sua sponte, that the Plaintiff seek leave for any further motion or procedure against the ICAO.

[26] As evidence that the Plaintiff is intent on harassment, Mr. Reuter has included in the Responding Record a copy of an email he received from the Plaintiff alerting him to one of the series of scheduling appointments. The Plaintiff’s email dated April 4, 2014, which was sent to various individuals at the ICAO as well as to its counsel, states:

Subject: Motion scheduling court

I love spending your money!

Have a good weekend, I look forward to insulting you all on the 23rd.

[27] The Plaintiff expressed his feeling of grievance against the ICAO quite passionately at the hearing of this motion, and I certainly understand that the Plaintiff feels strongly about the merits of his underlying claim. But the fact that one is aggrieved is a reason to use the court system properly; it is not a reason to use the court system improperly as a means of harassing the opposing side.

[28] The Plaintiff’s motion is dismissed.

[29] Mr. Reuter submits that under the circumstances the ICAO deserves its costs of this motion on a substantial indemnity basis.

[30] Rule 57.01(1)(f)(i) provides that in exercising my discretion to fix costs I can take into account the fact that this motion to set aside an Order is repetitive of an appeal of that same Order and was therefore unnecessary. More importantly, Rule 57.01(1)(e) authorizes me to take into account the conduct of a party and its impact on the proceedings. Given the message sent by the Plaintiff in his email and his attempts to schedule motion upon motion in the face of Corbett J.’s Order, I would agree that a higher than usual level of costs is called for.

[31] In its Costs Outline the ICAO requests a total of $11,297.54, which for a motion of this nature represents a reasonable amount of costs when applying a substantial indemnity scale. I gave the Plaintiff, who is an accountant by training, an ample amount of time to review the Costs Outline presented to him by Mr. Reuter before making any submissions in response. The Plaintiff’s only response, after reading through the Costs Outline, was to advise me that he is content to make no response to the ICAO’s costs request.

[32] The Plaintiff shall pay costs to the ICAO in the amount of $11,297.54, inclusive of disbursements and HST.

[33] The Plaintiff’s approval as to form and content of the formal Order herein is dispensed with.

Morgan J.

Date: April 24, 2014