Court File and Parties

COURT FILE NO.: CV-15-66501 DATE: 2017/03/31 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Manorama Sennek Applicant – and – Carleton Condominium Corporation No. 116 Respondent

Counsel: Self-represented Antoni Casalinuovo, for the Respondent Allison Klymyshyn - LawPRO

HEARD: March 17, 2017

REASONS FOR DECISION ON MOTION TO DISMISS Application and small claims court action

L. Sheard j.

[1] The respondent, Carleton Condominium Corporation No. 116 (“CCC 116”) moves to dismiss this application (the “Lien Application”) and a Small Claims Court action, Court File No.SC-01-15-00137039-000 (the “Small Claims Action”) because Manorama Sennek (“Sennek”) has failed to comply with the interlocutory orders made against her in the Lien Application.

[2] CCC 116 also brought a separate application, Ontario Superior Court of Justice File No. 16-70954 (the “Vexatious Litigant Application”), seeking an order declaring Sennek a vexatious litigant and barring her, directly or indirectly, from initiating or continuing any action, application, motion and/or proceeding without leave of a judge of the Ontario Superior Court of Justice as against CCC 116 and other related persons, including the law firm and lawyers who represent CCC 116. The evidence in support of this dismissal motion was also relied upon for the Vexatious Litigant Application, which was heard by me immediately after this dismissal motion.

[3] For the reasons set out below, I am granting the motion brought by CCC 116 to dismiss the Lien Application and the Small Claims Action.

Background

[4] Sennek is the owner of a condominium unit, known municipally as Unit 107, Level 01, Carleton Condominium Plan No. 116 (“the Sennek Unit”). On August 19, 2015 Sennek commenced the Small Claims Action. In her 14-page claim, Sennek sought various relief against CCC 116, its Board of Directors, and against Reid Property Management Ltd., who managed the condominium.

[5] On September 4, 2015, CCC 116 and the named Board members delivered their own 14-page pleading in defence of the Small Claims Action.

[6] Sennek’s claim concerned three main issues: the pruning of a Tamarac Pine tree in Sennek’s backyard; the size of the parking space owned by the Sennek Unit; and the installation of a flowerbox on the front of the Sennek Unit. CCC 116 removed the flowerbox on the basis that it did not comply with CCC 116’s bylaws and/or policy manual.

[7] Other issues arose.

[8] Firstly, CCC 116 questioned whether Sennek was entitled to sue as her name is different from that shown on title to the Sennek Unit. Sennek refused to provide particulars of her name change, asserting privacy concerns. From there, the litigation began to spiral out of control.

[9] On October 30, 2015 CCC 116 registered a lien in the amount of $763.00 against the Sennek Unit. The lien was for the costs incurred by CCC 116 to remove and relocate the flowerbox from the front of the Sennek Unit to the backyard. The police were asked to attend before the flower box could be removed. Also added to the lien registered against the Sennek Unit, were charges of over $2,400.00 paid to Dr. Catherine Gow pursuant to court order, for the appointments that Sennek failed to attend.

[10] Rather than paying the lien under protest, an option that would have kept the litigation within the Small Claim Action, on November 19, 2015, Sennek commenced the Lien Application. Sennek sought a declaration that she was the owner of the Sennek Unit; an order discharging CCC 116’s lien’s on the Sennek Unit; and enjoining CCC 116 from taking any “disciplinary measures or enforcement proceedings” against Sennek until final disposition of Sennek’s “tort claims” as set out in the Small Claims Action.

[11] Notwithstanding Sennek’s stated privacy concerns, CCC 116 was entitled to proof that Sennek was one and the same as the person who is shown as the registered owner of The Sennek Unit. On October 9, 2015 Deputy Judge Bansie, the judge in the Small Claims Action, ordered Sennek to serve on counsel for CCC 116 an affidavit setting out the circumstances of her name change, with supporting documents. CCC 116 counsel was to disclose to their clients only that Sennek was one and the same as the registered owner of the Sennek Unit.

[12] Mere hours after the endorsement of Deputy Judge Bansie, Sennek made a complaint to the Law Society of Upper Canada (“LSUC”) the first of many, against one of CCC 116’s lawyers. Her complaint appears to relate to submissions made in the Small Claims Action concerning Sennek’s standing as a licensed lawyer in the province of British Columbia. In all, Sennek complained against a total of four lawyers, and one paralegal, who worked for the law firm acting for CCC 116. On each lawyer complaint, the LSUC determined that an investigation was not warranted and closed its file. There is no evidence concerning the complaint against the paralegal, who was not an employee of the law firm.

Sennek’s Responding Affidavit

[13] In response to CCC 116’s dismissal motion, Sennek filed a three-volume, 450 page responding record entitled “Affidavit & Exhibit Book”. Volume 1 begins with Sennek’s 74-page affidavit sworn March 12, 2017. The materials appear well-organized, and professionally assembled. However, when reading the materials, it appears that they simply repeat and re-argue the same issues and concerns that have already been addressed by Justices Kershman, Beaudoin (who refused to grant leave to appeal from the Kershman order) and Roger.

[14] The record before me includes the lengthy endorsements of Justices Kershman and Beaudoin. Those endorsements document the history of the litigation and other complaints made by Sennek: the numerous court appearances; the allegations made by Sennek against CCC 116, its directors, and its lawyers; the claim brought by Sennek against CCC 116’s lawyers - both the law firm and individual lawyers in that firm – which action was dismissed by Justice Beaudoin on October 26, 2016 on the basis that the action was “frivolous, vexatious, and an abuse of process”; orders made in the Small Claims Action; the numerous complaints to the LSUC; the complaint to the Privacy Commissioner, etc. I do not repeat the history here but do note that, at its core, this is a dispute over the pruning of a tree, the installation of a flowerbox and the width of a parking space.

[15] Most, if not all of the issues set out in Sennek’s affidavit of March 12, 2017 had been put before a judge of one or more of the Small Claims Court, the Superior Court of Justice, the Divisional Court and the Court of Appeal.

[16] Despite the decisions and orders that have been made in the Lien Application and the Small Claims Action, Sennek still appears to be pursuing the same issues, which she sees through a very personal lens. For example, paragraph one of Sennek’s affidavit sworn March 12, 2017 begins as follows:

I believe this file has been intentionally derailed by counsel for the respondent out of both personal and professional animus:

(a) to defend the property manager and directors from being found liable for misappropriating CCC 116 resources to do favours for their friends while ignoring and intimidating other unit owners who demand that all unit owners be treated equally; and

(b) to discredit me before my complaints of professional misconduct by counsel for the respondent can be investigated by the Law Society of Upper Canada (“LSUC”).

[17] At paragraph three of her affidavit, Sennek asserts, in part, that the lawyers representing CCC 116 pursued a highly incendiary litigation strategy involving: “filing a false lien… Maximizing legal fees… Ad hominem attacks to damage my personal and professional reputation…unlawfully accessing and circulating a sealed family court document…; and threatening the director who is a stranger to the litigation with attribution of legal fees …”.

[18] As set out at paragraph six of her affidavit, Sennek has been a licenced lawyer in Alberta and in British Columbia. She has applied for membership in the LSUC. She has three university degrees: B.Comm (USask), LL.B./JD (Common Law, USask), LLM (U of Ottawa) and is working toward an M.A. (Law and legal studies, Carleton University). She states that she is a research lawyer and author for Carswell and a long-time member of Mensa. Sennek’s affidavit provides additional details of her legal studies and the steps she has taken to become licenced to practise law in Ontario.

[19] Although she is not presently licenced in Ontario, with her legal background, it would be fair and reasonable to consider that Sennek is a lawyer, not a lay person.

[20] The endorsement of Justice Kershman chronicled the other actions taken by Sennek, all of which led him to make an order for her to be assessed for her ability to understand information relevant to making litigation decisions and to appreciate the reasonably foreseeable consequences of a decision or lack of a decision in the Lien Application and Small Claims Action under section 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43 because of “grave concerns as to Ms. Sennek’s ability to conduct this matter and the Small Claims Court Action.”

[21] Sennek’s March 12, 2017 affidavit does not address the concerns identified by Justice Kershman. Further, it is clear that she has consciously and deliberately refused to comply with the orders of Justices Kershman and Roger.

[22] I accept Sennek’s assertions that she is intelligent, educated, and trained in the law. However, the materials put before me lead me to share the concern expressed by Justice Kershman that Sennek lacks the judgment and ability to reasonably pursue any grievances she might have against CCC 116. Her behaviour in the Lien Application and Small Claims Action has led CCC 116 to incur enormous legal fees. At the hearing of this motion, counsel for CCC 116 advised that the fees are approximately $96,000.00 and that the CCC 116 condominium owners have been subject to a special levy of $100,000.00 to cover those costs. Should costs be awarded against Sennek and added to the lien claim registered against the Sennek Unit, there would be insufficient equity to cover the value of her mortgage. For that reason, the mortgagee of the Sennek Unit, Laurentian Bank of Canada, has sought intervener status to allow it to make costs submissions at the hearing set for August 18, 2017.

Non-Compliance with Interlocutory Orders

[23] When Sennek refused to comply with the Order of Kershman, J. CCC 116 brought a motion to enforce it. That motion was heard by Justice Roger on October 21, 2016. He ordered that Sennek comply with Justice Kershman’s order and required her to attend at the office of Dr. Catherine Gow to undergo a capacity assessment.

[24] This motion is brought pursuant to paragraph seven of the order of Justice Roger that permits CCC 116 to move, on notice to Sennek and her mortgagee, to dismiss the Lien Application and the Small Claims Action, with costs.

[25] At the motion, Sennek was asked whether she had any evidence to show that she had complied with the Orders of Kershman, J. or Roger, J. Sennek acknowledged that she had not attended at Dr. Gow’s office as ordered by Justice Roger but asserted that she had been seen by another doctor. Sennek advised the Court that she had undergone a capacity assessment and that the report was on her laptop computer. Sennek offered to allow me to see what was on her laptop computer, but would not allow counsel to view it. Sennek also would not agree to provide a copy of the purported assessment report to CCC 116 or its counsel. As a result, whatever may have been on Sennek’s laptop was not admitted into evidence on CCC 116’s motion.

[26] In the end, despite her lengthy affidavit and exhibits, Sennek did not provide an explanation for her failure to comply with the orders of Justices Kershman and Roger. Instead, she has re-argued her case; attempted to justify or explain her lack of success in attempting to appeal from the Kershman J. and Roger J. orders; and renewed her allegations and personal attacks against counsel for CCC 116.

Analysis

[27] Rule 60.12 of the Rules of Civil Procedure, 1990, Reg. 194 provides that where a party fails to comply with an interlocutory order, in addition to any other sanction provided by the rules, the court may stay the proceeding; dismiss the party’s proceeding; or make such other order as is just.

[28] An action should not be struck out as a first resort to enforce an interlocutory order. In this case, a motion had been brought before Justice Roger to enforce the order of Justice Kershman. Again, the order of Justice Roger specifically contemplates this motion being brought.

[29] The facts in this case are similar to those before the court in Baradaran v. Tarion Corp., 2015 ONSC 7892. In that case, the court was also faced with a self-represented litigant. The court observed that the plaintiff used the process itself “and especially appeal rights, to punish the parties opposite in costs and with defamatory allegations that he can make with impunity and absolutely privileged legal proceedings” (para 8). At paragraph 9 of the decision, the court noted that the plaintiff “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…”

[30] Similar to this case, in Baradaran the plaintiff was an experienced user of the civil justice system. Again, similar to the facts here, the court noted that Baradaran had put forward no explanation for his non-compliance. In Baradaran the court concluded that the action ought to be dismissed for failure to comply with court orders.

[31] Court orders are made for a purpose and are meant to be complied with. The civil justice system is intended to resolve disputes fairly and on their merits and in a timely manner. (Kolesmith v. Sterling Mutuals Inc., 2014 ONSC 4696)

[32] Parties to litigation are entitled to look to the court to enforce orders. “The law is not a “toothless tiger”. The public must be able to maintain confidence in the administration of justice.” (Kolesmith, at para 56).

Disposition

[33] Based on the materials before me, I am satisfied that, as in Baradaran, if the Lien Application and Small Claims Actions continue, the situation will worsen and that this case cries out for a dismissal under rule 60.12 of the Rules of Civil Procedure. Accordingly, I grant the relief sought by CCC 116 and dismiss the within application as well as the Small Claims Action.

Costs

[34] In the usual course, the successful party is entitled to costs. In this case, CCC 116 has been successful and, absent Offers to Settle or other facts that were not put before me on the motion, CCC 116 is entitled to its costs of the Lien Application and the Small Claims Action.

[35] As per submissions made on the motion, costs are to be argued before me on August 18, 2017. The mortgagee of the Sennek Unit, the Laurentian Bank of Canada, shall be given intervener status to make submissions at that cost hearing.

[36] Any and all materials to be considered by me on the determination of the costs shall be served and filed:

(i) by CCC 116 no later than 21 days prior to August 18, 2017;

(ii) by Sennek no later than seven days prior to August 18, 2017; and

(iii) by the Laurentian Bank of Canada, no later than seven days prior to August 18, 2017.

Madam Justice Liza Sheard Released: March 31, 2017