Barnwell et al. v. Markowa, 2015 ONSC 4467

COURT FILE NO.: CV-14-518537

DATE: 20150710

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

OSBORNE G. BARNWELL, THOMAS N.T. SUTTON and MOYA L. GRAHAM

Applicants

– and –

DAFINA E. MARKOWA

Respondent

A. Pantel, for the Applicant Osborne Barnwell,

T. Pagliaroli, for the Applicants Thomas Sutton & Moya Graham

Dafina Markowa, In Person

HEARD: July 10, 2015

Wright J.

REASONS FOR JUDGMENT

INTRODUCTION

1This is an application pursuant to section 140 of the Courts of Justice Act. The applicants are seeking a declaration that the respondent is a vexatious litigant and an order prohibiting her from instituting any further proceedings, or continuing any outstanding proceedings.

2The sole issue in the application is whether the respondent is a vexatious litigant, such that she should not be allowed to take any steps in existing proceedings or commence new proceedings without leave of the court.

FACTUAL OVERVIEW

3It is important to state at the outset that this matter has a long and complicated history that I do not intend to recite now.

4I do however rely and accept the facts as set out in the affidavit of Jonathan Schachter (Tab 2, moving party application record) and as set out in the factum of the applicant Osborne Barnwell.

5I will now provide a very brief overview of this matter in the hopes of providing some much needed context.

6The underlying action was for medical malpractice and arose as a result of surgical procedures performed on the respondent in June 2005. Numerous causes of action were alleged arising from the plaintiff’s cosmetic surgery. Numerous defendants were sued, including several physicians.

7The action was commenced in 2007 and ultimately dismissed when Justice Spence granted the defendants’ summary judgment motion.

8All of the moving parties on this application are all lawyers.

9The applicants Thomas Sutton (Sutton) and Moya Graham (Graham) represented the respondent in the underlying action.

10Osborne Barnwell (Barnwell) was retained by the respondent for 35 days, during which he made one appearance in motion scheduling court.

11Since the dismissal of the underlying action, the respondent has issued three lawsuits.

12The applicant Barnwell has been named as a defendant in all three, while the applicants Sutton and Graham have been named in two.

13All three lawsuits have been dismissed on the basis that they were found to be vexatious, frivolous and an abuse of process.

14I have summarized those actions below.

Action #1

15On July 29, 2014 the respondent brought a motion alleging that Barnwell had been in a conspiracy with the defendants’ counsel on the underlying action. Justice Matheson dismissed the action finding it to be without merit, frivolous, vexatious and an abuse of process. Moreover, she concluded that the respondent, in bringing the motion, was attempting to re-litigate numerous matters that had already been decided.

Action #2

16On November 14, 2014 Justice Myers dismissed the respondent’s action pursuant to Rule 2.1 of the Rules of Civil procedure on the basis that it was frivolous, vexatious and an abuse of process. In this action, the respondent alleged obstruction of justice on the part of the all three applicants and as against the experts who provided evidence on the underlying action.

Action 3#

17On December 18, 2014 Justice Myers once again, pursuant to Rule 2.1 of the Rules of Civil Procedure, dismissed Ms. Markowa’s action on the basis that she was simply trying to re-litigate issues that had already received a final determination. The action against the three applicants and others was found to be frivolous, vexatious and an abuse of process.

18The respondent launched appeals in connection with all three actions. All three were unsuccessful due to her failure to perfect the appeals as required.

POSITION OF THE RESPONDENT

19Ms. Markowa opposes the application. She takes the position that all judges are in a conspiracy against her and that she has been treated unfairly. She takes the position that she has been justified each and every time she has initiated a court proceeding.

APPLICABLE LEGAL PRINCIPLES

20Section 140(1) of the Courts of Justice Act provides a judge with authority to issue a vexatious litigant order. It provides:

s. 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.

21This provision is a codification of the inherent jurisdiction of the Superior Court to control and to prevent abuses of its own process, by authorizing the judicial restriction of a litigant’s right to access any court, including proceedings in appellate courts. See Kalaba v. Bylykbashi, 2006 CanLII 3953 (ON CA), 23 R.F.L. (6th) 235 (Ont.C.A.) at para. 30, leave to appeal to S.C.C. refused [2006] S.C.C.A. No. 144 (S.C.C.).

22While a vexatious litigant order restricts a vexatious litigant's access to the courts, it does not deny the litigant access to the courts. It merely imposes a procedural step upon certain litigants in the interest of ensuring that vexatious proceedings are not pursued before our courts: see Ontario v. Coote, 2011 ONSC 858, aff’d 2011 ONCA 563.

23Non-judicial proceedings can be taken into account, including complaints to professional bodies and other individuals. A respondent's behavior both in and out of court can be relevant. See Bishop v. Bishop, 2011 ONCA 211, 2011 O.J. No. 1290 (C.A.), at paras. 4 and 6.

24The adjective "vexatious" is defined by the Concise Oxford Dictionary, 11th ed. (Oxford: University Press, 2004) as:

1. such as to cause vexation.

2. Law not having sufficient grounds for action and seeking only to annoy the defendant.

25To "vex" is defined as "to anger by a slight or a petty annoyance; irritate".

26In Re Lang Michener et al. v. Fabian et al., (1987), 1987 CanLII 172 (ON SC), 59 O.R. (2d) 353 (H.C.J.), at para. 19, Henry J. identified certain typical features of vexatious proceedings as follows:

a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding;

b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;

c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

e) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action;

f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious;

g) the respondent's conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.

27This list is neither exhaustive nor is it necessary for a litigant to meet all of the various factors identified by Henry J. The categories of vexatious proceedings are never closed and whether a litigant is vexatious must be determined by an objective standard: Mascan Corp. v. French, (1998), 1988 CanLII 4731 (ON CA), 64 O.R. (2d) 1 (C.A.) at para. 15 and Ontario v. Deutsch, [2004] O.J. 535 (S.C.J.) at para. 21.

ANALYSIS AND FINDINGS

28As set out above the case law has identified a number of common elements for consideration in the assessment of a vexatious litigant pursuant to s. 140 Courts of Justice Act.

29In applying those factors to this case I am well satisfied that the respondent falls into the category of a vexatious litigant.

30And here is why.

31I find that the respondent, in bringing the three lawsuits against the applicants, was clearly attempting to re-litigate issues that had already been determined.

32I find that the respondent has been persistent in her efforts to roll forward grounds and issues from the prior proceedings and use them to supplement her proceedings against the counsel who had represented her.

33All three lawsuits were dismissed on the basis that they were without merit and were vexatious, frivolous and an abuse of process.

34Ms. Markowa’s history in the justice system reflects a long list of meritless applications. Let me give you an example. Today, Ms. Markowa asked for an adjournment on that basis that she is currently appealing a decision of Justice Chapnik. The decision she is appealing is the granting of an adjournment that she asked for on June 12, 2015. This is just one of the nonsensical proceedings launched by the respondent that continue to clutter the justice system.

35I find that the respondent has never satisfied a single cost award made in the underlying action.

36I find that the respondent has persistently, yet unsuccessfully, launched appeals following the dismissal of all three actions. On all three occasions, she failed to perfect the appeals and was in direct contravention of the timelines required by the Rules of Civil Procedure, and in contravention of the endorsements made by the Court of Appeal imposing deadlines to perfect the appeals.

37Her persistent pursuit of unsuccessful appeals, in combination with the other factors listed above, provide ample evidence to support a finding of a vexatious litigant.

38I find the numerous actions and appeals brought by the respondent have led to the harassment and oppression of the applicants. They have been forced to spend an exorbitant amount of time and legal fees in defending the meritless and abusive actions.

39The respondent has demonstrated a pattern of behavior both in and out of court of being uncooperative, difficult and manipulative. She has, on occasion, threatened to file complaints against the applicants and their counsel. She has threatened to file complaints against the judiciary. Today, she threatened me, that if I did not grant her adjournment request, she would immediately file a complaint against me.

40She has accused every single judge who has ever presided over her matters of bias and has asked that they recuse themselves, including this court today. These accusations are made without any basis whatsoever. I find that they are nothing more than a blatant attempt by the respondent to control and manipulate the justice system.

41Left to her own devices I am satisfied that Ms. Markowa would continue to launch applications that are completely without merit, and which only serve to clog and clutter an already overburdened justice system. If allowed to continue this behaviour, would result in legitimate litigants being denied access to justice, which is no justice at all.

42For the aforementioned reasons, I do find the respondent to be a vexatious litigant.

CONCLUSION

A judgment shall issue as follows:

43This Court Declares that Dafina E. Markowa For a Declaration has persistently and without reasonable grounds instituted vexatious proceedings and conducted proceedings in a vexatious manner in the courts of Ontario within the meaning of sections 140(l)(a) and (b) of the Courts of Justice Act, R.S.O. 1990, c. C.43;

44This Court Prohibits Dafina E. Markowa either directly or indirectly, from instituting any further action, application, proceeding, motion, assessment or appeal of any kind, save for an appeal from the Order granted in response to this application, on her own behalf or on the behalf of anyone else in any court in Ontario until such time as she has obtained leave pursuant to s. l40(3) of the Courts of Justice Act and as provided for in the Order;

45This Court Prohibits Dafina E Markaowa either directly or indirectly, from continuing any action, application, proceeding, motion, assessment or appeal of any kind previously instituted in any court in Ontario, on her own behalf or on the behalf of anyone else in any court in Ontario until such time as she has obtained leave pursuant to s. l40(3) of the Courts of Justice Act.

46This Court Orders that a copy of the Order be forthwith delivered to and registered by the Ontario Court of Appeal and every region of the Ontario Superior Court of Justice and Divisional Court;

47This Court Further Orders that approval of the form and content of this Order by the respondent by dispensed with.

COSTS

48The applicants are the successful party and are thereby entitled to costs.

49I find costs on a partial indemnity basis to be fair, reasonable and proportionate.

50The respondent shall pay the applicant Barnwell costs in the amount of $5,000.00 inclusive; and, the applicants Sutton and Graham costs in the amount of $2,000.00 inclusive.

51The respondent will make payments within thirty days of this judgment.

The Honourable Justice K. Wright