CITATION: Beard Winter LLP v. Shekhdar, 2017 ONSC 4846

COURT FILE NO.: CV-17-573982

DATE: 20170821

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Beard Winter LLP and Robert Harason, Applicants

AND:

Kersasp Shekhdar, Respondent

COUNSEL: R. L. Winterstein, for the Applicant

BEFORE: Carole J. Brown, J.

HEARD: August 14, 2017

ENDORSEMENT

[1] The applicants, Beard Winter and Robert Harason seek an order pursuant to the Courts of Justice Act, RSO 1990, c.C. 43, section 140(1)(b), declaring the respondent, Kersasp Shekhdar, a vexatious litigant.

[2] Mr. Shekhdar is a resident of Pakistan. On most occasions over the history of the subject litigation, he has appeared in court by telephone. However, on this occasion, he sent an email indicating that he does not attorn to the jurisdiction and does “not accept Canadian jurisdictions as clean or non-corrupt jurisdictions”.

[3] The voluminous evidence before this Court establishes that the respondent has persistently over more than a decade brought numerous actions, motions and appeals found to be without merit.

[4] In April 2014, the applicants were sued by the respondent for professional negligence. In that context, the respondent brought an excessive number of motions and appeals, the vast majority of which were entirely without merit and many of which sought to re-litigate issues already determined. The various motions and appeals are in evidence before this Court. Further, in the applicants’ factum is a chart setting forth all of the motions or appeals, the results, the dates of the decision and the court before which the matter was heard.

[5] From 2008 to the present, the respondent has brought 27 motions and appeals, alleging misconduct of opposing parties, contesting previous orders of the courts and seeking leave to appeal decisions, which have all been dismissed. He has been found to be in breach of numerous court orders, has been found by the courts to be uncivil, disrespectful, to engage in vexatious conduct, and unmeritorious claims and proceedings. He has made unfounded allegations of bias, racism, corruption, perjury and illegality against those masters and judges who have found against him in proceedings. He has further attempted to appeal, seek leave to appeal where necessary, seek extensions of time to appeal and relitigate the various decisions of the masters, judges and appeal courts which have found against him since 2008. Said decisions of the Ontario Superior Court of Justice (masters and judges) and the Court of Appeal are in evidence before this Court, and were thoroughly reviewed in today’s hearing.

[6] He has made unfounded allegations against masters, judges, court staff and opposing counsel, alleging that they are biased, prejudiced, racist, and corrupt. Against the same people, he has made serious, unfounded allegations of misconduct, including criminal misconduct. These allegations are set forth in the voluminous record before the court, which was reviewed in depth in the proceeding today.

[7] The respondent has failed to pay costs as ordered by the courts. As at June 30, 2017, he owes the applicants costs of $155,007.62 pursuant to numerous court orders.

[8] The evidence indicates that he has also routinely recorded judicial proceedings without authorization and posted them on the Internet.

The Law and Analysis

[8] Section 140(1) of the Courts of Justice Act provides:

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.

[9] Where an individual has instituted proceedings which are frivolous and/or vexatious, a judge of the Superior Court may issue an order that requires that person to seek the leave of the Superior Court in order to commence or continue any proceedings before any court.

[10] Section 140 engages the court’s inherent jurisdiction to control its process and to prevent abuse of its process.

[11] An Order under section 140 is beneficial to all parties as it ensures that public resources are not wasted on vexatious litigation, protects the targets of vexatious litigation from the time and cost of mounting a defence, and also serves the litigant who is attempting to proceed with vexatious litigation by averting what would inevitably be a costly, time-consuming and futile effort: Law Society of Upper Canada v. Chavali, [1998] O.J. No. 5890 (Gen. Div.) at para. 26.

[12] The section 140 Order does not prevent access to the Court, but rather requires that applications for leave to the Court be granted before a plausible claim can proceed, while vexatious proceedings will be thwarted: Law Society of Upper Canada v. Chavali, supra.

[13] In determining whether a section 140 Order should issue, the following factors are relevant:

(a) whether the action or actions were brought to determine an issue or issues which have already been determined by a court of competent jurisdiction;

(b) whether the grounds and issues raised in the proceedings are rolled forward into subsequent actions and repeated and supplemented;

(c) whether it is obvious that an action is not capable of success or that no reasonable person can reasonably expect to obtain relief;

(d) whether the actions are brought for an improper purpose, including harassment or oppression of other parties by proceedings brought for purposes other than the assertion of legitimate rights.

See Re Lang Michener and Fabian, 1987 CanLII 172 (ON SC), [1987] O.J. No. 355 (HCJ) at p.5.

[14] In determining whether proceedings are vexatious, the whole history of the matter must be considered, and not just whether there was originally a good cause of action. Whether a proceeding is vexatious is determined by an objective standard.

[15] I have reviewed all of the materials before me, including the five volume application record, factum and brief of authorities of the Applicants. I have considered the current claim, as well as the various proceedings instituted by the respondent, all within the larger history of the litigation brought by the respondent since 2008.

[16] The respondent has commenced multiple proceedings, contesting and appealing orders of the courts, raising issues that have already been disposed of by courts of competent jurisdiction, has attempted to re-litigate matters previously determined, has brought proceedings which, at law, do not have a chance of success, and has brought proceedings without merit or foundation, as found by various levels of court.

[17] It is clear that the respondent has continued over the years and continues to date to attempt to litigate and continuously appeal issues arising from the same factual matrix.

[18] He continually disparages and berates judges, masters, court staff and lawyers. He writes to and sends documents to nonparties, including judges, masters, court staff, other levels of court, lawyers and politicians. His accusations and aspersions tend to bring the administration of justice into disrepute.

[19] I am satisfied, based on all of the evidence before me, that Mr Shekhdar has, persistently and without reasonable grounds, instituted vexatious court proceedings and conducted proceedings in a vexatious manner, such that an order should issue pursuant to Section 140 of the Courts of Justice Act. Accordingly, I order as follows:

1. A declaration that Kersasp Shekhdar has persistently and without reasonable grounds instituted vexatious proceedings and conducted proceedings in a vexatious manner in the Superior Court of Justice, and the Ontario Court of Appeal, within the meaning of section 140(1)(a) of the Courts of Justice Act, R. S. O. 1990, c. C. 43;

2. An Order prohibiting Kersasp Shekhdar either directly or indirectly, either on his own behalf or on behalf of anyone else, from instituting any further proceedings, or continuing any proceedings previously instituted in any court in Ontario, except with leave of a judge of the Ontario Superior Court of Justice pursuant to section 140(3) of the Courts of Justice Act;

3. An Order that all proceedings previously instituted by Kersasp Shekhdar in any court in Ontario not be continued, except with leave of a judge of the Ontario Superior Court of Justice pursuant to section 140(3) of the Courts of Justice Act;

4. An Order that any application for leave pursuant to paragraphs 2 and 3 above shall be ex parte and in writing, accompanied by an affidavit that outlines the merits of the proposed action, application, proceeding, motion, appeal or step, and a copy of this Order in the event that the application is not dismissed and the judge reading the ex parte application is of the view that the proposed application for leave to commence or continue an action, application, proceeding, motion or appeal, as the case may be, might be granted, the judge shall set a date for an oral hearing, permitting each party the right to make oral submissions and entitling the defendant, responding party or respondent to file a complete motion record;

5. An Order that, should Kersasp Shekhdar, either directly or indirectly, file material seeking to commence or continue any proceeding including any appeal in any court in Ontario without first filing an entered and issued Order from a judge of the Superior Court of Justice permitting him to do so, the proceeding shall be immediately stayed upon any person filing a copy of this Order in any such court.

6. An Order that a copy of this Order be forthwith delivered to the Ontario Court of Appeal, the Superior Court of Justice and Divisional Court.

7. That approval of the Order to be taken out and this matter be dispensed with.

Costs

[20] The jurisprudence establishes that the appropriate scale of a costs order in a vexatious litigant motion where the litigant has consistently pursued frivolous and vexatious claims against targeted individuals should be liable for substantial indemnity costs: see Dobson v Green, 2012 ONSC 6872; Deep v College of Physicians and Surgeons (Ontario), 2010 ONSC 5665; affirmed 2011 ONCA 196; leave to appeal denied [2011] S.C.C.A. No. 152; It has been recognized that one of the many objectives of cost awards includes discouraging and sanctioning “inappropriate behaviour by litigants” (Fong v Chan (1999) 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330), and further, to sanction behaviour that increases the duration and expense of litigation or is “otherwise unreasonable or vexatious”: (British Columbia (Minister of Forests) v Okanagan Indian Band 2003 SCC 71, [2003] 3 S.C.R. 371).

[21] Based on all of the evidence before me, I am satisfied that, in the circumstances of this case, as it substantial indemnity costs award against the respondent is appropriate. I award costs payable by the respondent to the applicants in the amount of $16,220.44.

Carole J. Brown, J.

Date: August 21, 2017