COURT FILE AND PARTIES

COURT FILE NO.: CV-09-391788 DATE: 20141121

SUPERIOR COURT OF JUSTICE - ONTARIO

B E T W E E N:

ROBERT BILICH

Plaintiff

-AND-

TORONTO POLICE SERVICES BOARD, WILLIAM BLAIR, MARK PUGASH, REUBEN STROBLE, BLAKE SHREVE, SUZANNE PINTO, STEPHEN RUFFINO, IAN SAPSFORD, CANDY GRAHAM, VICTORIA BALICE and WENDY DRUMMOND

Defendants

BEFORE: F.L. Myers J.

APPEARANCES: R. Bilich, in person

Michael C. Smith, for the defendants

HEARD: November 20, 2014

endorsement

[1] Mr. Bilich is his own worst enemy. Whether he is reacting to a parking ticket or trying to carry a piece of civil litigation, he approaches matters with a relentless ferocity that serves him poorly. This piece of litigation is four years old and remains bound up in pleadings motions. Along the way, Mr. Bilich has amassed several costs orders against him that remain unpaid. In my view, the action should be stayed for a few months to allow Mr. Bilich time to pay his costs awards and to step back and re-think his litigation strategy.

[2] In her Endorsement reported at 2013 ONSC 1445, Frank J. described the lawsuit as follows:

2. The plaintiff commenced this action as a result of his having been arrested and charged with criminal harassment on June 22, 2008. What gave rise to this charge was his alleged harassment of a parking enforcement officer the previous day. The Toronto Police Services reported the fact of the charge and the plaintiff’s identity in a news release. In September 2009, the charges were withdrawn when the plaintiff entered into a recognizance to keep the peace and issued a letter of apology to the parking enforcement officer.

3. The plaintiff seeks damages in this action based on the alleged conduct of the members of the Toronto Police Services, the Toronto Police Services Board and the Toronto Chief of Police in arresting him and with respect to events subsequent to his arrest.

4. The plaintiff is unrepresented, and as such, personally drafted the statement of claim. It consists of 183 paragraphs and claims $10 million in damages. Generally, the plaintiff’s claim is for damages based on the alleged libel, false arrest, negligent investigation, assault, intimidation, abuse of power and breach of Charter protected rights.

5. The defendants submit that the plaintiff has pleaded causes of action that are not known to law, has pleaded claims that have no reasonable prospect of success, and that portions of the claim are scandalous, frivolous or vexations and are an abuse of the process of the court. They seek to have the claim struck in its entirety without leave to amend. [Footnotes omitted]

[3] A paragraph 99 of her Endorsement, Frank J. described Mr. Bilich’s statement of claim as follows:

99. This pleading is not a concise statement of the material facts on which the plaintiff relies for his claims. It is a verbose, intemperate, disorganized, confusing, emotional diatribe against the defendants. The plaintiff’s incorporation of legal terminology in the pleading serves not to clarify the issues but rather to confuse them. The pleading, with the exception of the Charter based claims that are saved, must be struck.

[4] Frank J. then went on to describe, with specificity, in paragraph 102, the particular paragraphs of the statement of claim that set out potentially viable causes of action and she gave the plaintiff 30 days to amend his claim based on those paragraphs.

[5] Rather than recognizing the assistance that Frank J. gave to him by her unusually long and detailed assessment of each of the causes of action pleaded, and her express roadmap teaching the plaintiff how to do it right, the plaintiff appealed.

[6] The appeal was dismissed when the plaintiff failed to perfect it in a timely basis. He appealed the dismissal. That appeal was dismissed for being devoid of merit. He appealed. That appeal was dismissed for being devoid of merit and because the plaintiff was unable to explain his failure to perfect. He sought leave to appeal to the Supreme Court of Canada. Dismissed.

[7] At each stage, costs were ordered payable by the plaintiff to the defendants. In all, Mr. Bilich has been required to pay $7,102.97 to the defendants by a number of court orders. The plaintiff was also the recipient of a costs order made by Matheson J. of $1,000. Setting this off against the plaintiff’s liability leaves a net amount of $6,102.97 due and owing to the defendants by the plaintiff under outstanding court orders.

[8] The plaintiff will not pay this amount and demands to see the accounts of counsel for the defendants and to have their accounts assessed. Rather than requiring assessments, this court has fixed the costs payable at each stage. This is the proper process as required by rules 57.01(3) and 57.03(1)(a). The Court of Appeal fixed costs under its processes. The Supreme Court of Canada assessed the costs that it ordered in accordance with its rules. All appeals from these orders have been exhausted. The plaintiff is not entitled to assess the accounts of counsel at this stage. He is required to pay the costs as ordered by the court.

[9] The plaintiff has delivered an amended statement of claim. The defendants have moved to strike it out on the basis that the plaintiff has failed to limit his claims to the matters allowed by Frank J. In light of the decision in this Endorsement, I have adjourned the motion to strike.

[10] The plaintiff’s conduct of the litigation has elements in common with vexatious litigants. His appeal of the order of Frank J. was ill-founded from the start and his conduct of the appeal was vexatious to say the least. He says that he was compelled to go to the Supreme Court of Canada due to the filing by the defendants of a putative cross-appeal from the costs order made by Frank J. Before me, Mr. Bilich said numerous times that he was compelled to take steps that contravened the Rules of Civil Procedure in order to expose the defendants’ wrongdoing. The defendants have not played by the Marquis of Queensberry Rules to be sure. While all correspondence is professional and reasonable on its face, they have pushed the plaintiff around with short service of documents, short service of motions, and they were more than reluctant to schedule cross-examinations of the affiants of the affidavits upon which they rely in this motion. They have been criticized where appropriate by various judges. Having said that, one can understand their predicament. Mr. Bilich is not easy to deal with. His conduct of the cross-examination of Suzanne Pinto would have tested the patience of Job. Judge Khawly commented on the plaintiff’s zeal and prolixity in declining to stay the criminal charges against Mr. Bilich despite finding a Stinchcombe (lack of proper disclosure) breach. He said, “It would take someone who shows much diligence beyond and [sic] what should be expected of a normal Crown, to sift through it all, be mindful that this man is unrepresented and try to deduce what other disclosure could be out there that could be useful to him”. (Transcript, R. v. Bilich, September 21, 2009, page 102, line 2)

[11] What Mr. Bilich fails to appreciate is that lawsuits have rules and are bounded by laws and procedures in order to assure fairness to all parties. If a party causes another party to incur costs unnecessarily, our system requires the unsuccessful party to reimburse the other for a portion of those costs. As Frank J. said, while an unrepresented party is entitled to some allowances, the same substantive rules apply to all litigants. Like the defendants, Mr. Bilich is not above the law despite his view of the nobility of his quest. There is no basis in the evidence to decline to enforce the outstanding costs awards against the plaintiff. He has given no evidence of impecuniosity that might raise other issues (although impecuniosity is not in itself a shield for unreasonable behaviour in litigation. See: Abbott v. Reuter-Stokes Canada Ltd. (1988), 32 C.P.C. (2d) 161 (Ont. H.C.)) Ignoring costs orders is unfair to the opponents and cannot be condoned by the court. See: Visic v. University of Windsor, 2013 ONSC 2063, [2013] O.J. No. 1743 (S.C.J.).

[12] Mr. Bilich is unrepresented and wields his status as a sword. Yet he seems to fail to appreciate that he has been the recipient of many allowances from judges to date. From my review of the matter, it seems to me that despite Mr. Bilich’s behaviour, judges have discerned at the core of his case the existence of potentially valid causes of action. Judge Khawly found that Mr. Bilich’s disclosure rights under the Charter had been violated – if only minimally. In addition to Charter claims, Frank J. identified the torts of false arrest, assault, intimidation, abuse of power and abuse of process as possibly being pled on the facts alleged. She also gave leave to amend paragraph 155 of the initial statement of claim which seems to try to assert a claim in trespass. This is not to say that the plaintiff can win a lawsuit on any of these bases. That is an issue for trial. But, at this early stage, it appears to be possible for the plaintiff to at least plead causes of action that could allow a claim to proceed if he does so correctly.

[13] It is not uncommon for there to be a cognizable complaint at the nub of a proceeding that is brought in a vexatious manner. See: Gao v. Ontario WSIB, 2014 ONSC 6497 at paragraph 18. Frivolous and vexatious proceedings will be dismissed whether under Rule 2.1 or otherwise. But the court is keen to hear matters on their merits if possible. The history of this case amply demonstrates the court’s concern to provide appropriate allowances for Mr. Bilich’s status while trying to move the matter along towards a fair and just hearing on the merits.

[14] I declined to assess the validity of Mr. Bilich’s amended statement of claim at this time. It is apparent on the face of the pleading, however, that Mr. Bilich has chosen to disregard many of the holdings of Frank J. In his zeal to have things heard his way, he appealed and fought the result provided by Frank J. instead of recognizing the helping hand that she extended to him.

[15] In my view, it is fair, reasonable and just in the circumstances for this action to be stayed under rules 57.03(2) and 60.12(a) until the plaintiff pays the costs awards that he has been ordered to pay to the defendants in the amount of $6,102.97 plus the costs of this motion discussed below. If payment in full, including all applicable interest, is not received by the defendants’ counsel by May 23, 2015, the defendants may move on no less than 21 days’ notice to the plaintiff to dismiss the action with costs.

[16] If the costs are paid in full, the motion to strike may be rescheduled. While the action is stayed, the court implores Mr. Bilich to try to obtain competent legal advice at least to assist him to consider whether to seek leave to amend his statement of claim while a motion to strike is outstanding. The defendants offered him that opportunity and are likely willing to discuss doing so again. But he will only get a finite number of chances.

[17] Pleading is a technical matter that takes knowledge and experience. Pleading may be one of the most difficult aspects of the civil justice system for unrepresented parties. It is difficult precisely because pleadings are so important. The entire lawsuit is driven and focused on the causes of action pled. The causes of action that Frank J. identified as possibly being open to the plaintiff are not simple causes of action to plead. Even an experienced pleader would likely have to look at case law and textbooks to define the proper way to plead these causes of action in this case and to discern the proper parties against whom each cause of action lies. The court has already said that it cannot allow a “verbose, intemperate, disorganized, confusing, emotional diatribe against the defendants” to stand as a basis for this claim. If the action proceeds, Mr. Bilich does not want to have that type of issue argued against him again. He should take a step back, try to approach matters as objectively as possible, obtain legal advice if at all possible, and consider carefully his options if he wishes to move forward in this lawsuit.

[18] The defendants’ counsel may send a draft order implementing the terms of this Endorsement to my assistant for signing by me. I dispense with the need for the plaintiff’s approval of the form and content of the draft order.

[19] The plaintiff confirmed that his email address is the address on the back of the motion record. I do not repeat it here due to privacy concerns. The court previously authorized service by email in this case. The defendants’ counsel need not bother further seeking formal confirmations from the plaintiff of his email address. Service of documents on the plaintiff will be sufficient if they are emailed to the address from which the plaintiff has sent emails to the defendants’ counsel and which is noted on the motion record(s). It will be the address on the email by which this Endorsement is sent to the parties by the court.

[20] The fixing of costs is a discretionary decision under section 131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure. These include the principle of indemnity for the successful party (57.01(1)(0.a)), the expectations of the unsuccessful party (57.01(1)(0.b)), the amount claimed and recovered (57.01(1)(a)), and the complexity of the issues (57.01(1)(c ). The Court must consider as well as the application of the principle of proportionality (Rule 1.04(1)). Overall, the court is required to consider what is “fair and reasonable” in fixing costs, and is to do so with a view to balancing compensation of the successful party with the goal of fostering access to justice: Boucher v. Public Accountants Council (Ontario) 2004 14579 (ON CA), (2004), 71 OR (3d) 291 (Ont. C.A.), at paras 26, 37.

[21] Mr. Bilich asks that no costs be awarded against him due to criticisms that judges have leveled at the defendants previously and due to his sense that he is exposing police wrongdoing in the public interest. He also alleges that since the defendants’ costs are being paid by government, the case is “cost free” to the defendants so they should not be entitled to costs from him. The criticisms leveled by various judges have been dealt with by those judges already. They do not form a basis to deny the defendants costs in this motion. This litigation is not public interest litigation in the sense that that term has become understood. The plaintiff seeks monetary relief in the millions of dollars for harms allegedly inflicted upon him by the defendants. Finally, the defendants’ costs are being paid by the government because he has sued government bodies and officials. Generally speaking, the government is entitled to costs in civil litigation like other litigants. In all, considering the relevant factors discussed above and the Costs Outline submitted by the defendants (seeking $9,000 for the entire motion including the motion to strike that did not proceed today), in my view it is fair and reasonable that the plaintiff pay the defendants costs of $1,000 forthwith.

________________________________ F.L. Myers J.

Date: November 21, 2014