Superior Court of Justice - Ontario

CITATION: Nguyen v. Bail, 2016 ONSC 2365

COURT FILE NO.: CV-16-CV-548553

DATE: 20160407

B E T W E E N:

Thi Binh Nguyen, Plaintiff

– and –

Dr. Monte Bail, Defendant

BEFORE: F.L. Myers J.

READ: April 4, 2016

endorsement

[1] By endorsement dated just three days ago and reported at 2015 ONCS 2259, 2015 ONSC 2259, I dismissed another proceeding by the same plaintiff against the same defendant for the same claims and relief. That was the second action by the plaintiff against the defendant for the same relief. The first action was also dismissed. See Nguyen v. Economical Mutual Insurance Company, 2015 ONCA 828.

[2] In the second action, I directed the registrar to send a notice to the plaintiff in Form 2.1A to advise her that the court was considering dismissing that action for being frivolous, vexatious, and an abuse of process on its face. Although she was invited to deliver submissions under Rule 2.1.01(3), the plaintiff chose not to do so.

[3] In my view there is no need to provide further notice to the plaintiff in this case. She has brought three identical claims and has already been notified that it is an abuse of process to start a subsequent lawsuit for the same relief on the same grounds as a prior unsuccessful lawsuit. Identical actions have been dismissed twice already. This is an appropriate case to make an order under the opening words of Rule 2.1.01(3) to proceed without sending Form 2.1A to the plaintiff.

[4] It is apparent on the face of the plaintiff’s statement of claim in light of material in the court’s file that the action is an abuse of process. Moreover, the plaintiff’s conduct of repeatedly suing is a sufficient sign of vexatiousness as to justify use of the attenuated process of Rule 2.1 in this case. Scaduto v Law Society of Upper Canada, 2015 ONCA 733.

[5] Therefore, this action is dismissed with costs payable to the defendant forthwith after the assessment thereof.

[6] I have concluded that, given the conduct of the plaintiff to date, it is appropriate to grant the dismissal order on terms under Rule 1.05 and pursuant to the inherent jurisdiction of this court to control its own process. Accordingly, it is a term of this order that the plaintiff is prohibiting from commencing any further actions or applications against Dr. Bail and Economic Mutual Insurance Company, or either of them, until such time as the plaintiff has:

(a) paid in full all outstanding costs awards in any and all existing or prior proceedings against the proposed defendant; and

(b) obtained an order of this court giving her permission to bring such a proceeding. The motion for permission shall be brought without notice to the proposed defendant before me in writing and shall be accompanied by (i) an affidavit, not exceeding five pages in length, that outlines the merits of the proposed proceeding and (ii) a copy of these reasons.

[7] The registrar of this court shall refuse to issue any new originating process by the plaintiff that includes a claim against Dr. Bail and Economical Mutual Insurance Company, or either of them, unless leave is first granted under para. [6] above.

[8] The prohibition set out in paragraph [6] expires upon the commencement of the hearing of the application to declare the plaintiff a vexatious litigant that is currently scheduled to be heard before Pollak J. on June 7, 2016. In the event that the hearing of that application is adjourned, then the prohibition set out in para. [6] shall continue until the vexatious litigant matter is heard.

[9] It is apparent that the plaintiff has the benefit of a fee waiver that allows her to commence proceedings before this court without paying filing fees. In light of her vexatious recidivism abusing the processes of this court, it would be helpful to the court were the government body with authority to provide fee waivers to consider declining to allow the plaintiff to have the benefit of that privilege for any proceeding that she may propose to bring in violation of this order. The court therefore respectfully requests the aid and recognition of any court, tribunal, regulatory or administrative body having jurisdiction in Ontario, to give effect to this order and to assist the defendant and his respective counsel and agents in carrying out the terms of this order.

[10] The court dispenses with any requirement for the plaintiff to approve the form or content of this order.

[11] In addition to the service by mail required by Rule 2.1.01(4), the registrar is to send a copy of this endorsement to the plaintiff and counsel for the defendants by email if it has their email addresses.

F.L. Myers J.

Date: April 7, 2016