CITATION: Vermette v. Nassr, 2015 ONSC 2450
COURT FILE NO’S.: FS-09-8867; CV-15-21792; and
Nassr v. Vermette and the Attorney General of Ontario, CV-14-21467
CORRECTED: 20150521
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Laurie Ann Vermette
Applicant
– and –
Jason Donald Nassr
Respondent
AND BETWEEN:
Laurie Ann Vermette
Applicant
– and –
Jason Donald Nassr
Respondent
AND BETWEEN:
Jason Donald Nassr
Applicant
– and –
Laurie Ann Vermette and the Attorney General of Ontario
Respondent
Mary Anne Ducharme, for the Applicant
Jason Donald Nassr, acting in person
Court File No.: CV-15-21792
Mary Anne Ducharme, for the Applicant
Jason Donald Nassr, acting in person
Court File No.: CV-14-21467
Jason Donald Nassr, acting in person
Mary Anne Ducharme, for the Respondent, Laurie Ann Vermette
Yashoda Ranganathan, Counsel for the Intervener, The Attorney General for Ontario
HEARD: March 23, 2015
Corrected Decision: The only correction is the addition of a third style of cause to this judgment: Nassr v. Vermette and the Attorney General of Ontario, Court File No. CV-14-21467.
patterson J.:
[1] Laurie Ann Vermette (“Ms. Vermette”) and Jason Donald Nassr (“Mr. Nassr”) lived together from April 2008 to April 2009, having been married in November 2008. They have a child together who was born on February 20, 2008, Evelina Nassr.
[2] On April 16, 2009, Ms. Vermette brought an application for custody and support from Mr. Nassr. Ms. Vermette had a son, Ayden, by a previous relationship, born October 28, 2001.
[3] On November 13, 2009, Mr. Nassr brought a motion, claiming exceptional hardship, be heard prior to a case conference for custody of both Ayden and Evelina and also an allegation that Ms. Vermette had not used child support received from the father of Ayden for appropriate purposes.
[4] The matter was put over to November 20, 2009, for material to be filed. On November 20, 2009 Nolan J. determined that the matter was not urgent and adjourned the motion to February 5, 2010, with the case conference to be held on February 2, 2010. The children were to remain with Ms. Vermette and Mr. Nassr was given access. The Office of the Children’s Lawyer (“OCL”) was appointed on consent with an investigation report pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Mr. Nassr was permitted to make enquiries at the school and daycare about the progress of the children.
[5] At the case conference, on February 2, 2010 Master Pope allowed the parties to serve additional material and the motions were adjourned to February 19. On February 19, 2010 the parties agreed to interim custody with the two children remaining with the mother and that the respondent given access.
[6] At another case conference before Master Pope, on September 28, 2010, Mr. Nassr had not filed his intake form for the OCL and therefore it was again granted, with him committing to complete the intake form. There were questions about his income and the matter was put over to February 18, 2011, for a settlement conference.
[7] In the interim, on December 3, 2010, Mr. Nassr brought a motion requesting a change in the consent order of February 5, 2010. Further, he wished a psychiatric and psychological evaluation of Ms. Vermette and that the Windsor-Essex Children’s Aid Society (“CAS”) be ordered to involve an observational social worker. He further requested that Ms. Vermette’s new partner not be anywhere near the children, an order that Anthony Rizzo be restrained in visiting Ayden, and that they must mutually agree on the caretakers for the children. There were other matters involving finances.
[8] There was insufficient time to deal with the matter on December 3, 2010 and the matter was put over to December 17. On December 17, the return of the motion, the applicant brought a motion to have supervised access. The respondent’s motion requesting a psychological assessment of Ms. Vermette and the applicant’s motion for supervised access were put over to January 7, 2011.
[9] On January 7, 2011, an order was granted for a s. 30 assessment with the balance of the motion to be set by the trial coordinator with an estimate of 2 hours.
[10] On February 18, 2011 the scheduled settlement conference was held. It was determined by Rogin J. that the matter could not be resolved and the matter would be put over until the s. 30 assessment had been received. Mr. Nassr requested of Rogin J. that a trial date be set but it was refused because Mr. Nassr had not filed the appropriate material and it was clearly not ready for trial.
[11] The motion returnable on February 25, 2011 brought by Mr. Nassr, again requested that Ms. Vermette undergo a psychiatric assessment. He wanted disclosure of any medical records of Ms. Vermette regarding a psychological assessment. He wanted incident reports of a criminal nature regarding the biological father of Ayden, namely Anthony Rizzo. He further wanted maternity records at the time of the birth of Evelina because apparently it was a high risk birth. He wanted St. Anne’s French Immersion school, the Windsor Catholic School Board and all bus providers to produce their records of known addresses for pick-ups and drop-offs concerning Ayden, and he wanted an order restraining Ms. Vermette’s lawyer, Mary Anne Ducharme, from making false statements and documents related to the case. This was put over to March 4, 2011 at which time it was agreed there would be an assessment done by Dr. Schnayer with the costs to be divided equally. A special motion was to be set up mutually agreeable by both parties which would allow Dr. Schnayer to complete the psychiatric assessment.
[12] Mr. Nassr brought another motion on April 1, 2011 essentially covering a previous request regarding a criminal report on Ayden’s father, the birth records, and the issue concerning pick-ups and drop-offs by the school system. Justice Bondy dismissed this motion as a duplication of a motion already in progress.
[13] On April 8, 2011 the matter came before Carey J. who was concerned about Mr. Nassr’s expressed intent to file a further notice of motion requesting the same material that he had requested in previous motions. As stated by Carey J.: “to allow this would make a mockery of the previous orders and today’s proceeding. Thus there will be an order that no further motions may be brought in this proceeding by Mr. Nassr without first obtaining leave of the court.” Both motions before the court were withdrawn and as a result Carey J. put the matter over to a settlement conference to be held following the receipt of Dr. Schnayer’s report. On April 12, 2010 a motion was brought by Mr. Nassr on a without notice basis seeking an order of production of certain documents. Quinn J. denied the motion and indicated that the motion should be on notice and returnable on Fridays in open court.
[14] On May 20, 2010 Mr. Nassr brought a motion, again to have the Windsor Police release a general occurrence report regarding the father of Ayden, again the request concerning a psychological assessment of Laurie Anne Vermette. Further, there was a request that the CAS produce records concerning the children and those records be forwarded to Dr. Schnayer and that the Catholic School Board produce records for the children to be provided to Dr. Schnayer and that maternity records on the birth of Evelina be forwarded to Dr. Schnayer.
[15] Justice Nolan, on May 20, 2011 indicated that the motion filed by Mr. Nassr was in direct contravention of the previous court orders and were dismissed with costs fixed at $1,000 payable forthwith.
[16] Mr. Nassr brought a motion on June 3, 2011 heard by Carey J. seeking leave to appeal and set aside Nolan J.’s order of May 20, 2011.
[17] Justice Carey determined previous orders had been made which had dealt with requests of Mr. Nassr which are essentially the same relief being sought that day and that Mr. Nassr was a vexatious litigant.
[18] He dismissed Mr. Nassr’s motion for leave to appeal Nolan J.’s order and he invoked s. 140 of the Courts of Justice Act that Mr. Nassr not be permitted to bring further proceedings unless there was court approval. Costs were ordered at $1,000 payable by Mr. Nassr.
[19] On October 15, 2014, Mr. Nassr opened a new file, 14-21381, seeking leave to appeal Carey J.’s order of June 3, 2011. This was dealt with by Pomerance J. on October 15 and 21, with her on October 23, 2014 granting leave to appeal Carey J.’s vexatious litigant order with Mr. Nassr being permitted to file additional material regarding the constitutional issue that he had raised.
[20] Prior to leave being granted on October 23, 2011, on July 8, 2011 a motion was granted that Mr. Nassr would have supervised access of the children pending further order.
[21] On September 17, 2011 Thomas J. held that, as Mr. Nassr was found to be a vexatious litigant, he had to obtain leave of the court to continue with any of the proceedings, including notice to the Attorney General.
[22] On September 19, 2011 Mr. Nassr attempted, without success, to bring a without notice motion in which he sought that he would have permission to serve and file a notice of contempt motion on the applicant.
[23] On October 7, 2011, Thomas J. appointed S.K. Campbell J. to case manage the file. Case conferences were held with S.K. Campbell J. on October 26 and November 8, 2011 to deal with a variety of issues including financial information, with the access motion to be returnable on December 2, 2011. This motion was adjourned on consent on December 2, December 9, and December 16, 2011.
[24] Mr. Nassr, prior to the trial before Rogin J., (held between September 24, 2013 and July 31, 2014) made allegations of social welfare fraud by Ms. Vermette, her drug use when she was younger, the criminal activity by the father of Ayden and an attempt to discredit Ms. Vermette’s new boyfriend. Mr. Nassr raised these issues in the trial before Rogin J. Justice Rogin dealt with the allegations of the dated drug use by Ms. Vermette and found it had little relevance to the custody issue. Justice Rogin indicated Mr. Nassr spent an inordinate amount of time viciously attacking Ms. Vermette’s credibility and that he was strident and abusive in his attempts to discredit her. During the trial, after warning Mr. Nassr to temper his vitriol and not misquote her evidence, Rogin J. was forced to stay the trial in an attempt to have legal aid counsel appointed to assist. This was not successful and Rogin J. continued the trial with Mr. Nassr cross-examining Ms. Vermette. Justice Rogin indicated that Mr. Nassr did not heed his constant admonitions.
[25] Regarding Mr. Nassr’s cross-examination of Ms. Vermette, Rogin J. found that it was for the purpose of insulting her, attempting to have her charged with welfare fraud and attempting to make a collateral attack on G. Campbell J.’s (Ontario Court of Justice) conviction of Mr. Nassr for criminal harassment which had been made on February 12, 2014, after an eight-day trial.
[26] Concerning the CAS workers, Mr. Osei and Mr. Livingston, who supported Ms. Vermette in the custody of Evelina, Mr. Nassr took the same method of attack of those witnesses.
[27] Dr. Schnayer conducted a psychological custody and assessment examination under s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), and was supportive of Ms. Vermette. Rogin J. commented that Mr. Nassr’s cross-examining Dr. Schnayer was vitriolic, prolix and abusive.
[28] Mr. Nassr attacked Dr. Schnayer’s findings as lacking competence and common sense. Justice Rogin found Dr. Schnayer’s handling of the cross-examination with composure, professionalism and grace.
[29] It was noted by Rogin J. that in regard to the criminal harassment charge that Mr. Nassr spent over 200 days in pre-trial custody.
[30] It is important to note some of the other conduct exhibited by Mr. Nassr.
[31] In November 2010 there was an incident that between Mr. Nassr and Ayden which resulted in Ayden being frightened. This was revealed at Ayden’s school, and resulted in the CAS investigating the matter. On December 1, 2010 Mr. Nassr left a voicemail at the school and accused the principal of being an irresponsible person and he would make sure his job was in jeopardy. He further indicated he was going on a letter-writing campaign and that the school principal would feel the wrath of his legal team and the consequences were going to be great. He called the principal an irresponsible piece of garbage. As a result, on December 1, 2010 Mr. Nassr was given a no trespass notice to the school which still is in place.
[32] Mr. Nassr filed a complaint against the CAS requesting an internal review.
[33] An internal review by CAS resulted from Mr. Nassr’s complaints concerning CAS workers. His complaint about the CAS worker, Osei and others were without merit and it was commented that CAS workers and supervisors have a right to be talked to in a respectful manner and not to be called derogatory names and yelled at by Mr. Nassr.
[34] As previously indicated Mr. Nassr tried to have a charge of social work fraud laid against Ms. Vermette. Not being satisfied when the police would not lay an information and the private information was refused, Mr. Nassr brought private informations on two counts of perjury against Det. Cst. Glen Gervais of the Windsor Police Services.
[35] Currently Mr. Nassr is attempting to appeal Rogin J.’s decision to the Court of Appeal.
[36] Mr. Nassr has lodged complaints against Ms. Vermette’s counsel, Mary Anne Ducharme, with the Law Society of Upper Canada (“Law Society”) and also Ms. Vermette’s trial counsel, Allan Dare Pearce.
[37] There was no formal application to declare Mr. Nassr a vexatious litigant before Carey J. on June 3, 2011, but on the material before him Carey J. declared Mr. Nassr to be a vexatious litigant.
[38] Mr. Nassr argued that there were procedural errors such as the spelling of his name, whether Carey J. mischaracterised the leave application and whether or not it was an interim or final order. In my opinion these arguments do not go to the merits of the argument as to whether or not Carey J. had sufficient information before him on June 3, 2011 to declare Mr. Nassr a vexatious litigant.
[39] In my opinion he had more than adequate evidence to make the vexatious litigant order.
[40] Prior to June 3, 2011, on April 1, 2011, Bondy J. held that a motion brought by Mr. Nassr was a duplication of a motion already in progress. On April 8, 2011, Carey J. dealt with a motion brought by Mr. Nassr and indicated, “to allow this would make a mockery of the previous orders and to delay a proceeding.” Also on April 8, 2011, Carey J. held there would be no further motions brought in the proceeding by Mr. Nassr without first obtaining leave of the court. On April 12, 2011, Mr. Nassr attempted to bring a leave motion on a without notice basis and this was denied by Quinn J.
[41] On May 20, 2011, Nolan J. dealt with a motion by Mr. Nassr who found that Mr. Nassr “had filed a motion in direct contravention of previous court orders.” The motion was dismissed and costs set at $1,000 payable forthwith.
[42] Section 140(1) of the Courts of Justice Act provides as follows:
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.
[43] As noted in Lang Michener and Fabian, 1987 172 (ON SC), it is important that the court looks at the whole history of the matter which include those actions brought “for an improper purpose, including harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights”.
[44] On June 3, 2011, Carey J., in denying the leave to appeal Nolan J.’s May 20, 2011 order, indicated “previous orders had been made that have been dealt with at the request of Mr. Nassr which are essentially for the same relief.” Carey J. declared Mr. Nassr to be a vexatious litigant.
[45] In my opinion Carey J. had the inherent right to declare Mr. Nassr a vexatious litigant on June 3, 2011, based on the information he had from the file and including his own previous dealings with Mr. Nassr on April 8, 2011. This is further supported by orders of Bondy, Quinn and Nolan JJ.
[46] If I am wrong and this matter should have been by way of formal application to declare Mr. Nassr a vexatious litigant, I now have such an application before me submitted by Ms. Vermette being file #15-21792, filed January 28, 2015.
[47] This application pursuant to s. 140 of the Ontario Courts of Justice Act outlines Mr. Nassr’s conduct prior to the June 3, 2011 ruling and brings up to date the conduct of Mr. Nassr regarding the custody trial. It also included Mr. Nassr’s February 15, 2015 motion (File 15-21887) to sue a variety of people including CAS workers who testified at the trial, New Beginnings (regarding supervised access), a Windsor Police detective and a request to lay a criminal information against two individuals unrelated to the custody application. Pomerance J. denied Mr. Nassr’s motion in its entirety on February 19, 2015.
[48] Further, Mr. Nassr attempted as previously indicated to discredit Ms. Vermette’s legal counsel, Mary Anne Ducharme and Allan Dare Pearce, by filing complaints against them with the Law Society.
[49] In the trial before Rogin J. clearly identified Mr. Nassr’s conduct to be highly inappropriate in what appeared to be a desire by him to discredit Ms. Vermette and anyone who was involved with the trial who did not agree with him including his February 15, 2015 motion in which he attempted to sue a great variety of people and organizations which was denied by Pomerance J.
[50] In his presentation before me it was clear that Mr. Nassr still has very strong feelings that he wants to establish his wife to be found to be a liar and appears to have little or no self-awareness that his conduct establishes that it was not in the best interest of his daughter for him to have custody or joint custody of her. In my opinion his conduct is not only harassment but also is vexatious.
[51] I therefore agree with Carey J.’s June 3, 2011 ruling that Mr. Nassr is a vexatious litigant.
[52] I also separately find based on the current application brought by Ms. Vermette that his prior conduct considered by Carey J. and his subsequent conduct in the trial before Rogin J. and subsequently the February 15, 2015 motion dealt with by Pomerance J., that Mr. Nassr be declared a vexatious litigant pursuant to s. 140 of the Court of Justice Act.
[53] I am satisfied that he has persistently and without reasonable grounds instituted vexatious proceedings and conducted proceedings in a vexatious manner.
[54] It is ordered that no further proceeding may be instituted by him in any court and any proceeding previously instituted by him may not be continued except by leave of a judge of the Superior Court.
[55] As Allan Dare Pearce, on behalf of Ms. Vermette, was successful in defeating Mr. Nassr’s motion to overturn Carey J.’s June 3, 2011 vexatious litigant order, and he was also successful in declaring Mr. Nassr a vexatious litigant on his own application, therefore Mr. Pearce is entitled to costs on both matters in the sum of $2,500.
Terrence L.J. Patterson
Justice
Released: May 12, 2015
Corrected: May 21, 2015
CITATION: Vermette v. Nassr, 2015 ONSC 2450
COURT FILE NO’S.: FS-09-8867; CV-15-21792; and
Nassr v. Vermette and the Attorney General of Ontario, CV-14-21467
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Laurie Ann Vermette
Applicant
– and –
Jason Donald Nassr
Respondent
REASONS FOR JUDGMENT
Patterson J.
Released: May 12, 2015
Corrected: May 21, 2015