CITATION: Lindhorst v. Centennial College, 2016 ONSC 2678

COURT FILE NO.: CV-16-548788

DATE: 20160419

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: alvin lindhorst

Applicant

• and -

centennial college, kevin rajpaulsingh, harold tan, the atttorney general for ontario and toronto police services board

Respondents

BEFORE: N. Spies J.

COUNSEL: Robert J. Maki, for the Applicant

Dianne Jozefacki, for the Respondents Centennial College, Kevin Rajpaulsingh and Harold Tan

Fred Fischer, for the Respondent Toronto Police Services Board

HEARD: In Writing

ENDORSEMENT

[1] By order dated January 20, 2015 Justice Abrams declared the Applicant, Alvin Lindhorst, a vexatious litigant. Pursuant to s. 140(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “Act”), Mr. Lindhorst now seeks leave to commence an action against the Respondents relating to his expulsion from Centennial College and his arrest for a threat made to a College employee, Mr. Rajpaulsingh.

[2] Rule 38.13 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 governs an application made under s. 140(3) of the Act. Rule 38.13(2) provides that this application shall be heard in writing, without the attendance of the parties unless the court orders otherwise. Pursuant to Rule 38.13(6), in addition to serving the proposed defendants to the action, the applicant shall serve the Application Record on the Attorney General of Ontario in the manner described in Rule 16.02(1)(h); namely, by leaving a copy of the document with a lawyer in the Crown Law Office (Civil) of the Ministry of the Attorney General.

[3] In this case, the Notice of Application is dated March 15, 2016 and the Attorney General was sent a copy of the Application Record by mail, presumably on that date, although it is not clear. This is not proper service and since the Attorney General (Civil) has not filed a response I do not know if this Application came to the attention of the Attorney General (Civil). However, given that I have decided to dismiss this Application and given that all of the Respondents who are the proposed defendants in the proposed action have responded to this Application, I proceeded to consider the Application on its merits.

[4] Pursuant to s. 140(4)(a) of the Act, in order to be granted leave the onus is on the applicant to demonstrate that the proceeding sought to be instituted is not an abuse of process and that there are reasonable grounds for the proceeding. The test is not whether the applicant has conceptually an arguable case. The applicant must proffer evidence and not mere allegations to support the proposition that there is an evidentiary basis for the relief claimed in the proposed proceeding. (See: Deep v. Canada (Revenue Agency), [2011] O.J. No. 4256 (S.C.J.) at paras. 7-8.)

[5] Blair J.A. in Foy v. Foy (1979), 1979 CanLII 1631 (ON CA), 26 O.R. (2d) 220 discussed the rationale underlying s. 140 of the Vexatious Proceedings Act, R.S.O. 1970, c. 481; the legislation that preceded the present s. 140 of the Act. The rationale remains the same. In describing the object of the legislation, Justice Blair stated that the “…vexatious litigant is not deprived of the right to bring proceedings. Rather, the burden is shifted: the vexatious litigant must establish to the Court's satisfaction that there is a prima facie ground for the proposed proceedings” (para. 19).

[6] Before turning to the proposed action, the history of the Applicant and why he was declared a vexatious litigant is important in determining whether or not this proposed action is an abuse of process. In making his order, Justice Abrams had the benefit of a chart which outlined the numerous claims the Applicant had commenced and the many costs orders that were outstanding against the Applicant. Justice Abrams accepted the contents of the chart as fact and it was reproduced in Mr. Fischer’s factum, counsel for the Toronto Police Services Board.

[7] Justice Abrams accepted as fact that in addition to the action he was dealing with, the Applicant had commenced at least 15 known court proceedings and had never been successful on the merits of any of them. Four of his proceedings related to a single dispute with a neighbour over the use of a well, which resulted in criminal charges against the Applicant which in turn resulted in an action by the Applicant against the Ontario Provincial Police. Justice Abrams then set out the steps typically followed by the Applicant following a perceived wrong which included bringing an action that is without merit, allowing the proceeding to languish for an inordinate period of time, seeking indulgences from the court in an effort to delay, appealing every order whether procedural or substantive, ignoring court orders and timetables, failing to pay costs ordered against him, failing to appear at proceedings, attempts to re-litigate issues, denying service of materials and bringing vexatious, meritless, repetitious and trifling actions against opposing counsel, court staff and judicial officials. Abrams J. concluded that:

Lindhorst’s proceedings are brought maliciously, vexatiously, and in bad faith. They are brought intentionally to harass and intimidate. They are not commenced for the purpose of achieving a just, expeditious, or fair determination of rights. Rather, Lindhorst’ proceedings are brought for the purpose of airing his (mistaken) views on, amongst other things, lawyers, the justice system, regulatory bodies, and individuals.

[8] The Applicant appealed the decision of Justice Abrams to the Court of Appeal. In its decision, the Court of Appeal refused to “give effect to any of the Applicant’s arguments” In disposing of the Applicant’s assertion that he had enjoyed some success in litigation in the past, the Court of Appeal stated that, “The minor and occasional success the Appellant has enjoyed does not detract from his long history of instituting multiple and meritless proceedings and his vexatious manner of conducting them.” The Court went on to observe that the Applicant had “repeatedly disrupted the hearing and made abusive comments to the judge [Justice Abrams] and the judge was entitled to have him escorted from the court room”. On this point, the Court concluded that the Applicant’s “behaviour at the hearing demonstrated his vexatious manner of conducting proceedings”. To give an example of the conduct referred to by the Court of Appeal, other things, the Applicant called Justice Abrams a “lying sack of garbage” and a “very evil man”.

[9] Turning to the proposed action, the Applicant’s claim is for $100,000 for damages for “negligence, negligent police investigation, assault and battery, loss of employment earnings and punitive, aggravated and exemplary damages”. He does not state specifically against whom these various heads of damages are claimed. The Respondents have made certain assumptions in that regard. I do not know whether their assumptions are correct but the fact they have had to guess what cause or cause of action are pleaded against them illustrates how defective the proposed pleading is. In addition the Applicant has not pleaded the requisite elements of the various causes of action that he wishes to assert.

[10] The other deficiency in the material is that the Applicant has not provided an evidentiary basis to establish reasonable grounds or merit to the proposed action against the Respondents. He has filed a one and a half page affidavit to which he devotes half a sentence to “advise” that the facts pleaded in his proposed Statement of Claim are “true and factual”. As I will come to the “facts” in the proposed statement of claim are really just a series of allegations of all of the Applicant’s complaints without much in the way of particulars.

[11] There is also a brief statement in the Applicant’s affidavit that he spent “three terrible days in jail without my medication or proper food” and that he was refused permission to speak to his lawyer and refused a court appearance for two days. He also alleges that an unnamed Crown incorrectly advised the court that he was a “freeman on the land”, which he states in his proposed claim is a criminal organization, and that as a result he got another day in jail.

[12] The Applicant was enrolled in the College’s paralegal program in January 2013. He was subsequently involuntarily administratively withdrawn in October 2013. In addition to the College, the Applicant wishes to sue Kevin Rajpaulsingh who is the Director of Student Life at the College and Harold Tan, a Student Relations Officer.

[13] An affidavit filed by Mr. Tan sets out significant issues that arose with the Applicant’s participation in the College’s paralegal program. He states that when College staff attempted to deal with these issues the Applicant became abusive and threatening. Given the Applicant’s conduct, he was referred to the College Hearing Committee (the “CHC”) and that Committee conducted a hearing on September 9, 2013. Following the hearing, the threatening behavior of the Applicant escalated and a Trespass Notice was issued against the Applicant by the College because of threats of violence made against Mr. Tan and Mr. Rajpaulsingh.

[14] The CHC issued a decision, which supported the College’s recommendation that the Applicant be involuntarily withdrawn from the College, effective immediately. The CHC findings include the fact that the Applicant posed a safety risk to the members of the College community, that he continued to send hostile e-mails to a wide range of College staff, despite being repeatedly warned to stop, that he was asked to provide a written complaint with specific details about alleged harassment or abuse, which he did not comply with, and that he engaged in paranoid behaviour in which he refused to acknowledge the authority of College staff and to follow their directions if he was not satisfied with the outcome.

[15] The Applicant was provided with numerous opportunities to appeal the CHC decision to the College Appeal Board but he did not do so. The CHC decision is now final.

[16] In the proposed Statement of Claim, the Applicant complains that he was “continually harassed, bullied and threatened” by the individual Respondents and he was “brought up on the false charge of issuing threats” by Mr. Rajpaulsingh, which charge was later withdrawn by the Crown. He outlines his various complaints with the Dean of the paralegal program, his complaints against the individual Respondents; his complaints against the president’s office and alleges that there were no grounds to dismiss him from the College. He complains the hearing was “biased from the outset and inappropriate”. He denies ever threatening Mr. Rajpaulsingh, alleges that he had a vendetta against him and that it was only because of Mr. Rajpaulsingh’s false allegations that he was terminated. All of his complaints against the College and its employees relate to what was ultimately dealt with by the CHC.

[17] Starting at paragraph 26 the Applicant sets out his allegations against the Toronto Police Services Board which I presume are in support of his claim for negligent investigation but again that is not clear. It is also not clear who the target of that claim is as the complaints are made against unnamed police officers. The Applicant complains that the police failed to obtain his version of events before seeking a warrant for his arrest, that the police failed to call or e-mail him before charging him and that the police failed to ask him to turn himself in. He also makes other allegations with respect to his time in custody and complaints against unnamed Crown prosecutors and the Attorney General who are not sued.

[18] Starting at paragraph 29 the Applicant sets out what is described as “Further Background Information” which makes complaints against Messrs. Rajpaulsingh and Tan about their dealings with the Applicant’s claim for special accommodation alleging a disability. These complaints continue into the next section of the claim which is headed “Lack of Proper Process.”

[19] Part way through this portion of the proposed claim the Applicant makes further allegations about his time in custody related to his complaint that he was not given access to medication, was strip searched without cause and was not properly fed.

[20] In addition to all of the deficiencies in the proposed pleading I am not satisfied that the Applicant has any claim for damages against the College. The detailed evidence filed by the College demonstrates that it treated the Applicant in good faith, even in the face of his vexatious and inappropriate conduct which is reminiscent of the way in which the Applicant treated Abrams J.

[21] As for the Toronto Police Service, they did not file evidence in response to the application but as submitted in the factum filed by their counsel, Mr. Fischer, the police did not owe the Applicant a duty to contact him and get his version of events prior to obtaining a warrant and arresting him. As for the other allegations while in custody, police routinely conduct a Level 3 search when someone is taken into custody for the safety of the officers, the person charged and other inmates. The other complaints about lack of medication and food are not particularized and no suggestion is made that the Applicant suffered any injuries or damages as a result.

[22] For these reasons the Applicant has not persuaded me that there are reasonable grounds or a prima facie case for the proposed action even if it were possible for him to set it out in a proper pleading.

[23] I also find that the proposed action constitutes an abuse of process for a number of reasons. First and foremost as I have already stated it is obvious that the action cannot succeed.

[24] Furthermore, it is an improper attempt to re-litigate and/or appeal what is now a final decision of the CHC that cannot be appealed to the Superior Court of Justice the proposed action is an abuse of process.

[25] In addition, based on my review of the other reported cases involving the Applicant, the Chart of the actions he has brought that was before Abrams J. and the findings of fact by Justice Abrams, I find that the proposed action is in keeping with the Applicant’s pattern of bringing vexatious lawsuits whenever he experiences a perceived wrong. To permit this action would lead to no possible good and would put these parties, who have never been in litigation with the Applicant before, to the hardship that litigation with him imposes including irrecoverable time resources and legal costs.

[26] In this regard it is significant that there is a trail of orders for costs that have not been paid by the Applicant. To date over $73,000 in costs has been ordered against the Applicant that includes the costs ordered in relation to the Application before Justice Abrams and the appeal to the Court of Appeal. Given the numerous other actions he has attempted to bring I would not be surprised if the outstanding cost orders to date are even higher.

[27] For these reasons the Application is dismissed in its entirety with costs payable by the Applicant to the Respondents. Counsel for the Respondents shall serve and file a bill of costs by May 1, 2016. Counsel for the Applicant shall have until May 15, 2016 to respond in writing limited to five pages.

[28] I remind the Applicant that pursuant to s. 140(4)(e) of the Act, that no appeal lies from this decision.

Spies J.

Date: April 19, 2016