Attorney General for Ontario v. Althea Reyes
Court File No.: CV-17-569807 Date: 2017-06-05 Ontario Superior Court of Justice
In the Matter of an Application pursuant to s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43
Between: THE ATTORNEY GENERAL FOR ONTARIO, Applicant – and – ALTHEA REYES, Respondent
Counsel: Domenico Polla, for the Applicant No one appearing for the Respondent
Heard: May 31, 2017
Perell, J.
Reasons for Decision
A. Introduction
[1] Pursuant to s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43, the Attorney General for Ontario brought this application for an order declaring Althea Reyes to be a vexatious litigant and for an order preventing her from instituting or continuing proceedings in any court without first obtaining leave from a Judge of the Superior Court of Justice. Ms. Reyes did not appear at the return of the application, and, rather, in the motion confirmation form, requested an adjournment. I did not grant the adjournment. I granted the application for written reasons to follow. These are those Reasons for Decision.
B. Factual and Procedural Background
[2] Ms. Reyes is a law school graduate, but she is not licensed to practice law.
[3] Between 1995 and 2017, a search of publicly available records, which may not be comprehensive, reveals that Ms. Reyes has been a plaintiff or applicant in approximately 20 civil proceedings before the Superior Court of Justice and before various administrative tribunals. She has brought numerous motions and appeals. As I shall mention below, she has also been involved in several criminal proceedings before the Ontario Court of Justice and before the Superior Court of Justice.
[4] In 2009, in Family Court proceedings, by Order dated January 9-10, Justice Kershman declared Ms. Reyes to be a vexatious litigant and enjoined her from commencing any proceedings involving her daughter. See Reyes v. Brunhuber, [2009] O.J. No. 6515 (S.C.J.).
[5] After Justice Kershman’s Order, Ms. Reyes continued to bring civil actions, some of them precluded by Justice Kershman’s Order and some of them not precluded by the Order.
[6] Three actions brought by Ms. Reyes were found to contravene Justice Kershman’s Order; namely:
(1) On November 4, 2015, Ms. Reyes commenced an action against her former criminal lawyer alleging that he bullied her in pleading guilty to criminal charges. Justice Myers subsequently dismissed the action pursuant to Rule 2.1.03 of the Rules of Civil Procedure, and he held that the action violated Justice Kershman’s Order. See Reyes v. Embry, 2016 ONSC 5558.
(2) On June 9, 2016, Ms. Reyes commenced an action against the Catholic Children’s Aid Society. Justice Myers dismissed the action summarily pursuant to Rule 2.1.03 of the Rules of Civil Procedure, and he held that the action violated Justice Kershman’s Order. See Reyes v. Buhler, 2016 ONSC 5559.
(3) On July 13, 2016, Ms. Reyes commenced an action against Matthew Jocelyn alleging that he had caused her to lose custody of her daughter. Justice Myers dismissed the action summarily pursuant to Rule 2.1.03 of the Rules of Civil Procedure, and he held that the action violated Justice Kershman’s Order. See Reyes v. Jocelyn, 2016 ONSC 5568.
[7] For an example of an action that was not subject to Justice Kershman’s Order, in 2012, Ms. Reyes brought a proceeding before the Human Rights Commission. However, she failed to appear at the hearing and the Commission dismissed her application.
[8] For another example of an action that was not subject to Justice Kershman’s Order, on April 15, 2014, after the Law Society had obtained an injunction restraining Ms. Reyes from practicing law and holding herself as a lawyer, Ms. Reyes sued the Law Society and alleged that it had falsely claimed that she had held herself out as a lawyer, fabricated evidence, lied in affidavits, made false and misleading statements and incessantly pressured third parties. In May 2014, the Law Society moved to strike the statement of claim and to dismiss the action as failing to disclose a reasonable cause of action and as frivolous, vexatious and an abuse of process. The motion was adjourned at Ms. Reyes’ request. On November 27, 2014, Justice Stewart granted Ms. Reyes’ second request for an adjournment on strict terms, failing which the statement of claim would be struck. Ms. Reyes did not comply with the terms, and by Order dated January 20, 2015, Justice Frank struck out the statement of claim and dismissed the action.
[9] As another example of an action brought by Ms. Reyes that was not subject to Justice Kershman’s Order, on August 26, 2016, Ms. Reyes sued K.L. and made serious allegations of misconduct including allegations of racism. Subsequently, by Order dated January 12, 2017, the action was stayed pursuant to Rule 2.1.01 pending receipt of submissions explaining why the action should not be dismissed as frivolous, vexatious and an abuse of process; see Reyes v. K.L., 2017 ONSC 308. No submissions were received, and Justice Faieta dismissed the action. See Reyes v. K.L., 2017 ONSC 2304.
[10] As another example of an action brought by Ms. Reyes that was not subject to Justice Kershman’s Order, on May 18, 2016, Ms. Reyes sued Meghan Scott, a Crown Attorney practicing in Toronto, for defamation, arising out of proceedings in which Ms. Scott was prosecuting Ms. Reyes. Ms. Scott brought a motion to strike the claim and dismiss the action as disclosing no reasonable cause of action and as frivolous, vexatious and an abuse of process. The motion was returnable on December 8, 2016, but Ms. Reyes did not appear, and Justice Pollak adjourned the motion to February 3, 2017. On February 3, 2017, Ms. Reyes again failed to appear, and Justice Matheson adjourned the motion to February 9, 2017, peremptory on Ms. Reyes with costs to Ms. Scott in the amount of $500 payable by no later than March 6, 2017. Those costs remain unpaid. (Other costs awards remain unpaid.) On February 9, 2017, Ms. Scott’s motion to strike was argued, and Justice Pollak reserved judgment. On March 16, 2017, Justice Pollak struck out the statement of claim; see Reyes v. Scott, 2017 ONSC 1093.
[11] Pausing here, I interrupt the history of notable civil proceedings brought by Ms. Reyes after Justice Kershman’s Order to mention the criminal proceedings involving Ms. Reyes. On September 9, 2016, Ms. Reyes was before the Ontario Court of Justice, and Justice Moore ordered that she post a common law peace bond. In the course of delivering judgment, Justice Moore stated:
Whatever decision I make today is based upon several factors. One, and in no particular order of importance, is the limited history I have of Ms. Reyes and her accessing the courts and her unrelenting number of motions that she brings before the Court and applications which to my mind are basically baseless and without foundation and in fact, vexatious; the amount of time that's been extended by the system in accommodating Ms. Reyes on frivolous and baseless motions and applications without any evidentiary basis. …. And, I would hope that Ms. Reyes’ name gets flagged by the system so that when she comes to court, whether it be the Ontario Court of Justice, or the Superior Court or any other court, that people take a long hard look at what it is that she's attempting to file and, and decisions have to start being made if and when people are going to stop receiving this material that's being presented to the court by Ms. Reyes.
[12] On December 19, 2016, in criminal proceedings in this court, Justice Quigley made an order prohibiting Ms. Reyes from filing any civil or criminal motions. Justice Quigley’s order provided:
No other civil or criminal motions or matters of any kind are to be accepted from Althea Reyes for filing in this Court until these preceding matters are determined, and thereafter, subject to those determinations, without leave of a judge of this court.
In the case of civil matters, leave shall be obtained from McEwen J. or his delegate. In the case of criminal motions, leave shall be obtained from Michael G. Quigley J. or Nordheimer J., or their delegate.
[13] Returning to examples of actions brought by Ms. Reyes that were not subject to Justice Kershman’s Order, I come to the action that was the tipping point for the application now before the court.
[14] In 2015, Ms. Reyes, suing in a different name, brought an action against her landlord in a residential tenancy dispute. At the same time, Ms. Reyes was suing her landlord in Small Claims Court, but that action was stayed as vexatious and duplicitous of the Superior Court action. On December 7, 2016, Justice Faieta dismissed Ms. Reyes’ motion to intervene because he was not satisfied that she was not the Allison Reyes named as a party. Justice Faieta found that Ms. Reyes was not a credible witness. Justice Faieta granted the defendants’ motion for a summary judgment with costs. See Reyes v. Esbin, 2016 ONSC 7755 and 2017 ONSC 601. In his Reasons for Decision, Justice Faieta stated:
I am considering making an order that no further proceeding be initiated by Althea Reyes in any court pursuant to s. 140 (1) of the Courts of Justice Act given Justice Kershman's Order dated January 9, 2009 and January 10, 2009, attached, which declared Althea Reyes to be a vexatious litigant and which appears to have limited the effect of the Order to proceedings related to [name omitted] despite the broader, mandatory language found in s. 140(1)(c) of the Courts of Justice Act. Written submissions, maximum 10 pages in length, shall be delivered to the Judges’ Administration Office.
[15] Further to Justice Faieta’s Reasons for Decision, the Attorney General made written submissions indicating that it would bring an application under s. 140 of the Courts of Justice Act. Justice Faieta made the following endorsement:
As a practical matter, the issue of whether Justice Kershman's Order should be interpreted to apply to all proceedings commenced by Ms. Reyes is moot given the Attorney General's declaration that he will be bringing an application pursuant to section 140 of the Act in respect of Ms. Reyes. Accordingly, I decline to answer the question that I raised at the conclusion of the motion for summary judgment.
[16] What is now before the court is the application that the Attorney General undertook to bring.
C. Discussion and Analysis
[17] Section 140 of the Courts of Justice Act states:
Vexatious proceedings
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.
(2) Repealed
Application for leave to proceed
(3) Where a person against whom an order under subsection (1) has been made seeks leave to institute or continue a proceeding, the person shall do so by way of an application in the Superior Court of Justice.
Leave to proceed
(4) Where an application for leave is made under subsection (3),
(a) leave shall be granted only if the court is satisfied that the proceeding sought to be instituted or continued is not an abuse of process and that there are reasonable grounds for the proceeding;
(b) the person making the application for leave may seek the rescission of the order made under subsection (1) but may not seek any other relief on the application;
(c) the court may rescind the order made under subsection (1);
(d) the Attorney General is entitled to be heard on the application; and
(e) no appeal lies from a refusal to grant relief to the applicant.
Abuse of process
(5) Nothing in this section limits the authority of a court to stay or dismiss a proceeding as an abuse of process or on any other ground.
[18] An order declaring a litigant to be a vexatious litigant and denying his or her access to the court without leave is an exceptional and rare order and a person is to be denied access to the courts only for the clearest and most compelling reasons: Winkler v. Winkler, [1991] 2 WLR 369 (Man. QB). A court granting a vexatious litigant order must provide principled reasons for the order, balancing a person's right to be free from abusive litigation with the right of another to have access to justice: Kallaba v. Bylykbashi, [2006] O.J. No. 545 (C.A.) at para. 145.
[19] The case law reveals that objectionable conduct by a litigant includes: (a) bringing one or more proceedings to determine an issue that has already been determined by a court of competent jurisdiction; (b) simultaneously commencing multiple proceeding for more or less the same relief; (c) bringing proceedings that cannot succeed; (d) bringing proceedings for the purpose of harassing and oppressing the opponent; (e) bringing proceedings without reasonable cause and pursuing them in a vexatious manner; and (f) bringing a proceeding where it is obvious that it cannot succeed or where it would lead to no possible good or where no reasonable person could expect to obtain relief from the proceeding. See: Lang Michener Lash Johnston v. Fabian (1987), 59 O.R. (2d) 353 (H.C.J.); Thornton v. Tittley (1987), 61 O.R. (2d) 543 (C.A.); Mascan Corp. v. French (1988), 64 O.R. (2d) 1 (C.A.); Chuang v. Royal College of Dental Surgeons of Ontario, 2008 ONCA 351; Bishop v. Bishop, 2011 ONCA 211; Ontario v. Jogendra, 2012 ONSC 3303, aff’d 2012 ONCA 834; E. & S. Carpentry Contractors Ltd. v. Fedak, [1980] O.J. No. 1569 (H.C.J.); Carnegie v. Rasmussen Starr Ruddy (1994), 19 O.R. (3d) 272 (Gen. Div.); Children’s Aid Society of Ottawa-Carleton v. B. (M.), [1997] O.J. No. 1964 (Gen. Div.); K. (L.) v. Children’s Aid Society of Lanark, [1998] O.J. No. 1991 (Gen. Div.); W. (B.) v. P. (R.), [1999] O.J. No. 31 (Gen. Div.), supplementary reasons 86 A.C.W.S. (3d) 1065 (Gen. Div.); McTeague v. Kalevar, [2005] O.J. No. 314 (S.C.J.); Sauve v. Merovitz, [2006] O.J. No. 4266 (S.C.J.); Knights Village Non-Profit Homes Inc. v. Chartier, [2006] O.J. No. 4436 (S.C.J.); Dale Streiman & Kurz LLP v. De Teresi (2007), 84 O.R. (3d) 383 (S.C.J.).
[20] The focus of the s. 140 application is on the conduct of the litigant, the manner in which he or she has pursued litigation before courts and tribunals and whether and to what extent his or her conduct has abused the court’s processes: Ontario v. Coote, 2011 ONSC 858 at para. 86, aff’d [2011] O.J. No. 3833 (C.A.)](https://www.canlii.org/en/on/onca/doc/2011/2011onca3833/2011onca3833.html). In considering whether a litigant is vexatious or his or her proceeding is an abuse of process, the court may consider the behaviour of the litigant throughout the whole course of the proceedings, including interlocutory steps and appeals, the litigant’s competence, integrity and honesty, and adherence to court orders and to the rules and standards of practice: Dale Streiman & Kurz LLP v. De Teresi, supra; Ontario v. Deutsch, [2004] O.J. No. 535 (S.C.J.); Predie v. Barrie (City), [2006] O.J. No. 1524 (S.C.J.).
[21] In assessing whether a proceeding is frivolous or vexatious, the court may consider such circumstances as the multiplicity of proceedings and whether the litigant has honoured previous courts’ orders, including orders to pay costs: Lang Michener Lash Johnston v. Fabian, supra. The court may consider the litigant’s conduct inside or outside the courtroom including his or her pursuing vexatious extra-judicial proceedings: Bishop v. Bishop, supra.
[22] In its factum, in a submission with which I agree, the Crown noted that the court has already decided that Ms. Reyes is a vexatious litigant but that Justice Kersham restricted the scope of the Order. In these circumstances, the Crown submits that Ms. Keyes has taken advantage of this indulgence and continued to vex her adversaries with frivolous actions that burden the administration of justice.
[23] Ms. Reyes has contravened Justice Kershman’s Orders and brought numerous vexatious and frivolous proceedings, including several that could be characterized as re-litigation or collateral attacks on orders with which she disagreed. Others were of the hopeless variety that are designed to discomfort and harass her foes. She has failed to pay costs orders. Moreover, it appears that she has defended herself in criminal proceedings in a wasteful and unhelpful manner. She has not complied with the rules of the court, and in both civil and criminal proceedings, she brings meritless interlocutory motions, fails to attend hearings or frequently seeks adjournments that appear to be delaying tactics or ways to circumvent compliance with the rules.
[24] There is ample evidence that supports the conclusion that Ms. Reyes is a vexatious litigant.
D. Conclusion
[25] For the above reasons, I declare Ms. Reyes to be a vexatious litigant.
Perell, J.
Released: June 5, 2017