Court File and Parties
COURT FILE NO.: CV-10-413391
DATE: 2015-12-16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Manoucher Baradaran
Plaintiff
– and –
Tarion Corporation, Rogers Boyd, Abbassgholi Nasseri, and Master Custom Homes Inc.
Defendants
Counsel:
Howard L. Shankman for the defendants Nasseri and Master Custom Homes Inc.
READ: December 15, 2015
REASONS FOR JUDGMENT
F.L. MYERS J.
Background
[1] The defendants Tarion Corporation, Nasseri, and Master Custom Homes Inc. move, without notice to the plaintiff, to dismiss this action pursuant to the terms of my order dated November 26, 2014. The reasons for my order are reported at 2014 ONSC 6870.
[2] As set out in reasons of the Court of Appeal, reported at 2014 ONSC 597, Mr. Baradaran has sued the defendants as a result of alleged construction deficiencies at his home and the failure of Tarion to remedy those deficiencies under the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31. The Court of Appeal discussed Mr. Baradaran’s previous unsuccessful efforts to enforce his claims before the Licence Appeal Tribunal and then before the Divisional Court and the Court of Appeal.
[3] I was assigned by Himel J., as delegate of the Regional Senior Judge, to case manage this action. By Reasons dated November 26, 2014, I stayed the action until Mr. Baradaran paid several outstanding costs orders. It is a term of my order that if Mr. Baradaran failed to pay the costs as ordered by February 1, 2015, the remaining defendants were at liberty to move without notice to dismiss the action. This motion has now been brought after more than one year. Mr. Baradaran has not complied with the outstanding orders of the court as required. For the reasons discussed below, the action is dismissed.
Relevant circumstances
[4] Mr. Baradaran is a very experienced user of the civil justice system. He represents himself in his proceedings.
[5] In its Reasons cited above, the Court of Appeal also discussed Mr. Baradaran’s history of obstreperous behaviour in a large amount of litigation involving these defendants and others. The Court held that Mr. Baradaran’s history was an insufficient basis to find Mr. Baradaran a “vexatious litigant” under s.140 of the Courts of Justice Act, R.S.O. 1990., c.C.43, The Court reasoned as follows:
[49] The respondents rely on a volume of legal proceedings pursued by the appellant against other parties, litigation which the appellant contends was warranted given his activities as a paralegal acting for some 500 clients. The application judge observed that it was “difficult to put all the claims [the appellant] has commenced into context given the limited evidence at the application.” Even if such evidence of other actions suggests that the appellant has engaged in a pattern of vexatious litigation against other parties, the concern addressed by the order was to put an end to the appellant’s attempts to litigate against the respondents. Whatever mischief may have been caused by the appellant’s pattern of litigation at large was not addressed by the order in this case which precluded only legal action in the courts by the appellant against the respondents. As such, the appellant’s pattern of litigation against others is not sufficient reason to uphold the vexatious litigant order in this case.
[6] Although Mr. Baradaran won that appeal, the Court of Appeal declined to award costs to him.
[7] In this case, Mr. Baradaran sues in relation to alleged deficiencies that have already been before the relevant tribunal. While the Court of Appeal found that the tribunal proceedings do not preclude Mr. Baradaran from suing, the tribunal decisions do suggest that the merits of the claims have been found wanting by the body charged with enforcement of the relevant statutory scheme. Although Tarion conceded that some of the deficiencies alleged were covered by its warranty, it denied the plaintiff’s claim because, among other things, he refused to allow the defendants to make repairs. As I noted in my prior endorsement, Mr. Baradaran makes unsubstantiated allegations that the defendants and anyone with whom they might associate to make repairs are on the take. As a result, he says that he left badly needed repairs unperformed for years to the point where he claims that they created a situation of danger that ultimately injured his daughter.
[8] There is no indication that Mr. Baradaran has made any real effort to have the case heard on the merits in the five years since he commenced it. Rather, he uses the process itself, and especially appeal rights, to punish the parties opposite in costs and with defamatory allegations that he can make with impunity in absolutely privileged legal proceedings. Indiscriminate use of appeal rights and exhausting all possible avenues of appeal despite the merits are recognized signs of vexatious proceedings. Re Lang Michener et al. and Fabian et al., 1987 172 (ON SC) at pp. 5 and 6; Landmark Vehicle Leasing Corporation v. Marino, 2011 ONSC 1671, at para. 38.
[9] Mr. Baradaran has been ordered to pay costs by Master Glustein (as he then was), Goldstein J., the Supreme Court of Canada, and by me totaling approximately $11,000. He has since added to his costs liability a further amount of approximately $9,900 ordered by the Court of Appeal when Mr. Baradaran’s putative appeal of my order was quashed. In addition, the Divisional Court has dismissed Mr. Baradaran’s motion for leave to appeal with costs yet to be assessed or ordered.
[10] Mr. Baradaran makes clear in materials that he files that he seeks justice as he sees it. That does not include however obeying orders of the court with which he disagrees. In my prior endorsement, I discussed the grounds asserted by Mr. Baradaran to justify his refusal to obey the outstanding orders. None provided legal justification for his acts. I noted in particular that Mr. Baradaran made no claim and submitted no evidence that he was impecunious.
[11] Mr. Baradaran is entitled to the assistance of the court to ensure that as a self-represented party, he understands the nature of the proceedings and he has a fair opportunity to present his case. Davids v. Davids, 1999 9289 (ON CA). My prior order was designed to bring home to him that he is required to pay costs orders and to give him two further months in which to do so.
[12] As a result of the procedural route that he has since followed, Mr. Baradaran has had a further year to pay the outstanding costs. Instead of paying the amounts that he has been adjudged liable to pay, he has basically doubled the quantum of his liability.
[13] The court is always very hesitant to resolve a case on procedural grounds. Moreover, here I am doing so without hearing further from Mr. Baradaran. But he has been in default of orders of the court for years without offering any proper explanation when given the opportunity to do so. He has not only failed to comply but he has worsened his noncompliance by incurring further costs orders that are also unpaid. His continued failure to obey court orders has to be seen wilful defiance in light of the clear notice provided in my prior endorsement. A minimum consequence of deliberate failing to comply with orders of the court is a refusal of audience. Ontario (Attorney General) v. Paul Magder Furs Ltd., 1991 7053 (ON CA).
[14] In my view, if this action continues, the situation can only worsen. This case therefore calls out for a dismissal under Rules 57.03(2) and 60.12. It is important to distinguish cases in which unfortunate litigants have to represent themselves and need help to seek justice in good faith and those, like this one, where a party has no real regard for justice and is abusing the parties opposite and the civil justice system. Had Mr. Baradaran put forward a reason for his non-payment or shown that he had a prima facie meritorious case that he was prosecuting in good faith last November perhaps different considerations would apply or a different balancing of equities might be appropriate. See the cases cited at paras. 45 to 52 of Visic v. University of Windsor, 2013 ONSC 2063,
[15] The court is very keen to the increasing prevalence of self-represented litigants appearing before it. Self-represented litigants are entitled to be heard with respect and to be positively assisted by counsel opposite and the judge to ensure that all litigants have a full and fair opportunity to put their cases before the court. Some lament that judges at times appear to bend over backwards to protect self-represented litigants to the point of unfairness to represented parties opposite. It is important to draw a line. All parties, self-represented or not, are entitled to a fair hearing and a fair day in court. Self-represented parties can, at times, require assistance to understand the process and legal rules so as to avail themselves of their entitlement to the fair hearing assured to all litigants. They are entitled to this assistance and both the court and counsel opposite are bound to provide it to ensure a fair hearing. But no party, whether self-represented or not, is entitled to abuse the system or the party opposite.
[16] Treating all litigants with respect and ensuring that all have an opportunity to have a fair hearing does not include excusing abusive conduct such as repeated breaches of court orders. To the contrary, ensuring a fair hearing and a fair process requires the even-handed application of the Rules and the enforcement of court orders for all parties. The Rules are broad enough that their interpretation and enforcement can and should take into account whether a party has legal representation where that issue is relevant to promote a fair hearing in the circumstances. However, once a determination under the Rules results in an order of the court, it is only fair for the orders to be seen as binding and to be enforced with an even hand regardless of parties’ representation. The self-represented party’s status would be taken into account in the hearing that led to the order being made if appropriate. I certainly took into account Mr. Baradaran’s self-represented status in ordering costs of only $750 against him last time. But once orders are made, a failure to enforce orders against self-represented parties is unfair to the parties opposite and undermines respect for the court and the civil justice system.
[17] Therefore the action is dismissed. The defendants have delivered costs outlines. They seek costs on a partial indemnity basis for those steps in the action that have not otherwise been subject to costs orders to date. I have reviewed the costs outlines and find them reasonable in hours billed and rates charged. Mr. Baradaran shall pay costs of the action on a partial indemnity basis to Tarion of $8,829.53 and to Master Custom Homes Inc. and Mr. Nasseri, together, of $6,900.10. In both cases the amounts set out include disbursements and tax. For clarity, I note that these costs are in addition to the outstanding costs previously ordered and discussed above.
F.L. Myers J.
Released: December 16, 2015
COURT FILE NO.: CV-10-413391
DATE: 2015-12-16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Manoucher Baradaran
Plaintiff
– and –
Tarion Corporation, Rogers Boyd, Abbassgholi Nasseri, and Master Custom Homes Inc.
Defendants
REASONS FOR JUDGMENT
F. L. Myers, J.
Released: December 16, 2015