COURT FILE NO.: CV-13-486390

DATE: 20140527

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen in Right of Ontario, Applicant

– AND –

Anne Marsden, Respondent

– AND –

Health Professions Appeal Review Board, Intervenor

BEFORE: Justice E.M. Morgan

COUNSEL: Christopher Diana and Melanie Goren, for the Applicant

Anne Marsden, in person (by telephone)

David P. Jacobs, for the Intervenor

HEARD: May 27, 2014

ENDORSEMENT

[1] The Applicant seeks an order declaring the Respondent a vexatious litigant pursuant to section 140(1)(a)-(b) of the Courts of Justice Act.

[2] The Respondent indicated to the court administration that she has a number of disabilities, and that she would be unable to physically attend court in Toronto. At her request, she has appeared today by telephone conference call assisted by her spouse, David Marsden, who is her personal support person.

[3] The Respondent states that this Application should have been commenced in the court’s Central West region. She lives in Burlington, ON and finds it a burden to file materials, review the file, and appear in person in Toronto. She submits that requiring her to come to Toronto for court, with her medical and accommodation needs and all of the difficulties entailed in travelling that distance, amounts to a violation of her rights under the Human Rights Code. She therefore seeks to have the entire matter transferred to Central West, pursuant to Rule 13.1.02(2) of the Rules of Civil Procedure.

[4] Counsel for the Applicant takes the position that since there is no statute or other rule governing the venue for this proceeding, Rule 13.1.01(2) gives the Applicant the choice of where to commence the Application. He also points out that the Respondent has herself commenced a number of proceedings in Toronto.

[5] While counsel for the Applicant has no particular objection to transferring the matter to Central West, he is anxious not to delay the matter any further. He also contends that there is no guarantee that the Respondent’s needs can be accommodated in the Milton, ON courthouse in Central West. Counsel has drawn my attention to an endorsement by Quigley J. in Maple Villa v. Estate of Eva Bourgoin, 2010 ONSC 5095, at para 3, suggesting that Milton might be an even more problematic venue for the Respondent than Toronto:

Finally, for several years since her mother passed away, Mrs. Marsden has made claims against the Attorney General of Ontario, court staff at the Milton courthouse where the Superior Court presides in Halton Region, and against the judges in the Central West region, for bias and a multiplicity of other claimed wrongs, claiming that her physical disabilities have not been adequately provided for in the manner that she has been dealt with by courts administration in Ontario in this region.

[6] The Respondent states that Quigley J.’s order applies to that one proceeding only, and that her disabilities have gotten more pronounced since that time and she now finds it extremely difficult to attend in Toronto. She assures me that she still desires the matter to be transferred to Central West, and that she is confident that the court in that region will be able to accommodate her. She also advises me that she has previously been able to have a Central West hearing held in Burlington rather than in Milton, and that she would endeavor to have the senior administrative judge in Central West make that arrangement once again.

[7] The Respondent is not prepared to proceed with the argument on the merits of this Application today. Although it has been scheduled well in advance, she states that she has been unable to file materials in response to the motion as she has not had access to the court file the way she would if the matter were in Central West. She specifically states that she has been unable to examine the affidavits of service filed by the Applicant. The reason that she needs to review the affidavits of service eludes me; she apparently has received the Applicant’s materials well in advance of today. However, it is her right to have access to the courthouse for the purposes of examining the file just like any other litigant, and it is incumbent on the court to ensure that the venue is selected in a way that is fair and that facilitates that right.

[8] I note that today’s hearing was set down on September 9, 2013. Low J., presiding at motions scheduling court, ordered the Respondent’s record to be served by January 6, 2014 and the Respondent’s factum to be served by April 21, 2014. The Respondent was not present on September 9, 2013 as she apparently had a conflict with another court appearance. Nevertheless, there is no argument that she did not know about those scheduling parameters, and yet she did not adhere them. I say this only to reinforce the point that a transfer to Milton may make it easier for the Respondent to file materials in a timely way.

[9] As indicated above, the purpose of the Application is to have the Respondent declared a vexatious litigant. The record shows numerous actions, applications, judicial review proceedings, and other litigation matters commenced by the Respondent, both in her personal capacity and in her capacity as Estate Trustee for the estate of her late mother, Eva Bourgoin. Counsel for the Applicant opposes any adjournment of this hearing, arguing that further delay will only give the Respondent opportunity to engage in more litigation and procedural maneuvers.

[10] I recognize that the Respondent truly does suffer from a number of disabilities. This recognition, in turn, prompts me to conclude that the Respondent’s request to transfer the Application to Central West, although not a perfect solution, is in the interest of justice. I note that Rule 13.1.01(2)(b)(vii) mandates me to take into account “any advantages or disadvantages of a particular place with respect to securing the just, most expeditious and least expensive determination of the proceeding on its merits”. Given the difficult accessibility issues faced by the Respondent, transferring this to the court region that is closest to her place of residence will help decrease any disadvantage that she suffers in responding to the Application.

[11] The Application is hereby transferred to Milton, in the court’s Central West region. I leave it to the parties to schedule the new return date with the court office in Milton. I do not know whether it is feasible to arrange for the hearing to be held in Burlington, but I leave it to the parties, or either them, to investigate that possibility if they so desire.

[12] If Ms. Marsden wishes to file responding materials with the court, she is to do so as soon as practicable. She told me this morning that she may consult a lawyer with respect to her response, which is of course her right; indeed, I indicated to her that she would be well advised to seek the advice of counsel. In any case, her responding materials are to be in proper form and served in a timely fashion. I will reiterate what Quigley J. stated in the Maple Villa case, at para 29: “The existence of her disability is undoubted. Mrs. Marsden admits it, her doctor confirms it and the Court acknowledges and sympathizes with it. However, it does not relieve Mrs. Marsden of the obligation to comply with the Rules of Civil Procedure just as any litigant in this province must do.”

[13] Pending a hearing of the Application, the Respondent shall seek leave from a judge of the Superior Court of Justice to commence any new proceeding or to take any further step in any existing proceeding – unless the existing proceeding is in Divisional Court, in which case the Respondent shall seek leave from Divisional Court to continue that proceeding and to take any further step. Any motion for leave must be accompanied by a proper motion record, and must be brought by the Respondent on notice to, and scheduled in cooperation with, the opposing party and the Applicant if the Applicant is not already the opposing party.

[14] For greater certainty, this requirement of leave to commence or continue any proceeding applies to the Respondent in her personal capacity and in her capacity as Estate Trustee of the Estate of Eva Bourgoin. I understand that the Respondent objects to this extension of the order to her Estate Trustee capacity, as the Application names her as Respondent only in her personal capacity. It has been pointed out to me, however, that the Respondent seems to use these capacities interchangeably; counsel for the Applicant expresses the concern that if both capacities are not specifically mentioned in this order, its effect will be undermined.

[15] The Respondent has provided a letter from her doctor indicating, among other things, that she requires sufficient time between court hearings to recover from the stress that these appearances cause her to experience. In the letter dated November 21 2011, Dr. Ruth St. Amand states specifically that, “All hearings/courts/tribunals Anne appears before must be separated by a minimum of 21 days in order that she has sufficient break time.” Accordingly, any new return date for this Application in Milton, or Burlington, or anywhere else, must be at least 21 days from today.

[16] Counsel for the Applicant may take out a formal order containing the terms set out above. The Respondent’s need to approve the form and content of the order is dispensed with. The order must be served upon the Respondent as soon as possible after it is issued and entered by the court.

[17] Costs of today’s appearance are reserved to the judge hearing the Application.

Morgan J.

Date: May 27, 2014