CITATION: Carleton Condominium Corporation No. 166 v. Sennek, 2017 ONSC 5016
COURT FILE NO.: CV-16-70954
DATE: 2017/08/24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Carleton Condominium Corporation No. 116
Applicant
– and –
Manorama Sennek a.k.a. Maneesh Saini, Mina Websford, Ms. Websford, Mina Sennek and M.S.
Respondent
Antoni Casalinuovo, for the Applicant
Self-Represented
HEARD: August 18, 2017
REASONS FOR DECISION ON MOTION TO ADMIT FRESH EVIDENCE and ON Application TO DECLARE RESPONDENT A VEXATIOUS LITIGANT
L. Sheard j.
[1] On August 18, 2017, for written reasons to follow, I granted the Motion brought by the Applicant, Carleton Condominium Corporation No. 116 (“CCC 116”) for leave to adduce fresh evidence to be considered on the Application brought by CCC 116 for an order declaring the Respondent (“Sennek”), a vexatious litigant. On that same date, after hearing submissions from Sennek, I also granted the orders sought by CCC 116 to declare Sennek a vexatious litigant, with written reasons to follow. These are the reasons.
Motion for Leave to Adduce Fresh Evidence
[2] The fresh evidence that CCC 116 seeks to adduce consists of the affidavit of Sonya Price sworn June 19, 2017, with exhibits, and copies of any further orders and/or endorsements pertaining to Sennek from either the Ontario Court of Appeal or the Ontario Superior Court of Justice. Although the Notice of Motion also asks for leave to make further oral submissions on the Application, in its Factum CCC 116 makes it clear that it does not seek to make further oral submissions.
[3] On March 17, 2017, I heard the Application. At the time it was argued, the grounds included that Sennek had breached or failed to comply with multiple Orders and that she had initiated multiple proceedings against CCC 116, its officers and directors, its property management company, their employees, officers and directors, and against CCC 116’s solicitors.
[4] Following the date on which the Application was argued, but prior to my having rendered a decision, Sennek had initiated a number of motions and appeals. Given the nature of the Application, CCC 116 wanted the Court to know about the subsequent court proceedings initiated by Sennek. Therefore, CCC 116 brought a motion returnable on July 4, 2017 for leave to adduce fresh evidence.
[5] The motion was first brought before Justice MacLeod on July 4, 2017. He adjourned it so that it might be heard by me on August 18, 2017, the date on which I was scheduled to hear cost submissions with respect to a companion action involving the same parties. In his endorsement, MacLeod J. also confirmed that I was to be notified of his endorsement so that I would be aware of CCC 116’s motion before releasing my decision on the Application.
[6] MacLeod J. also ordered that if there were any additional decisions by any other court or tribunal between the date of the original hearing before me (March 17, 2017), and July 4, 2017, that CCC 116 could file those so that they would be before me on August 18, 2017. MacLeod J. reserved to me the decision of whether or not to admit the evidence set out in the affidavit of Sonya Price and/or copies of any additional decisions, should those be filed.
[7] In view of the endorsement of Justice MacLeod, I did not release my decision on the Application so that I might hear submissions on August 18, 2017 with respect to CCC 116’s motion.
Positions of the Parties: Motion to Adduce Fresh Evidence
[8] The materials before me on CCC 116’s Motion, consists of CCC 116’s Motion Record, Factum, and Book of Authorities. Sennek did not serve or file any materials in advance of the motion, but at the hearing she sought leave to file a document entitled: Capacity Assessment Factum, Full and Fair Disclosure Factum, Contempt Faction, and Cost Submissions of the Appellant. Counsel for CCC 116 did not object and, accordingly, Sennek was permitted to file this document. Sennek explained that this document has not been filed with any court and relates to a motion or like proceeding in the Court of Appeal with respect to File Numbers C63736, C63020 and M48108. It was not prepared for the proceeding before me and, in fact, relates, in part, to the appeal from the decision I made on March 31, 2017. However, I conclude that this document has no relevance or bearing upon the issues before me on the motion for leave to adduce fresh evidence or on the Application itself.
[9] The basis for CCC 116’s motion is set out its Factum: the evidence it seeks to introduce is important, relevant and goes to the heart of the issues on the application; namely, it is evidence that further supports the applicant’s position that the respondent is a vexatious litigant.
Affidavit of Sonya Price
[10] The affidavit Sonya Price was sworn on June 19, 2017. It attaches copies of the following court proceedings initiated on and after March 17, 2017 and related Court endorsements:
i) Notice of Appeal to the Court of Appeal, Court File 15-66501, dated April 1, 2017 in which Sennek is the appellant and CCC 116 is the respondent. Sennek’s Notice of Appeal appeals from the Order of Justice Sheard dated March 31, 2017 and also states “(and by implication the Orders of Mister Justice Roger dated October 21, 2016 and Mister Justice Kershman dated March 15, 2016 incorporated by reference therein).” Sennek’s Notice of Appeal seeks 13 separate orders plus costs.
Included in the relief she seeks is an order consolidating three actions: Superior Court File Numbers 15-66501 (lien removal application); 16-694839 (defamation and breach of privacy) and 16-70954 (frivolous and vexatious application).
Sennek attaches what she describes as “Annexure “A”” which is a statement of claim in which the plaintiff is identified as “M.S.” and the defendants include the CCC 116’s lawyers and others, who had been named defendants in File Number 16-69483, an action that was dismissed by Justice Beaudoin on October 26, 2016 pursuant to rule 2.1.01 as being “frivolous, vexatious and an abuse of process of the Court;
ii) Notice of Appeal, Court of Appeal File Number C63736, dated April 1, 2017 and amended May 26, 2017. Sennek is the appellant and CCC 116 is the respondent, and, again, Sennek seeks to appeal from the Order of Justice Sheard dated March 31, 2017 “and the order upon which it is predicated, including the order of Mister Justice Roger dated October 21, 2016, Mister Justice Beaudoin, dated August 2, 2016; and Mister Justice Kershman dated March 15, 2016”.
iii) Notice of Motion, Court of Appeal File Number C63736, dated May 26, 2017, returnable June 9, 2017, in which Sennek seeks leave to appeal from the Orders of Justices Kershman, Beaudoin, Roger, and Sheard as well as extensions of time to appeal to the Court of Appeal from those Orders;
iv) Notice of Motion, Court of Appeal File Number C63020, dated May 31, 2007 (sic) and returnable June 9, 2017 in which Sennek seeks, in part, an order for review of the registrar’s dismissal for delay of the appeal to the Court of Appeal from the Order of Roger J. and for extensions of time to appeal from the orders of Roger J. and Sheard J.;
v) The handwritten endorsement of Miller J.A. dated June 9, 2017, in Court of Appeal File Numbers M47922, M47921, C63736 and C63020 dismissing Sennek’s appeal in its entirety as an abuse of process. The salient paragraphs of the endorsement read:
[4] The principle of the res judicata and the rules governing appeals are in the service of justice. It is unfair, and wasteful, to repeatedly litigate the same matters. I understand that the appellant believes that previous orders can only be explained by the judges’ having refused to read her materials. That is not borne out by a reading of the record.
[5] The appeal, in its entirety, is an abuse of process. The motive and appeal being without merit, the motions are dismissed.
[6] The parties are all agreed that costs should be reserved to a hearing before Sheard J. on August 18, 2017.
vi) Notice of Motion, Court of Appeal File Number C63736, dated June 16, 2007 (sic), returnable on a date to be fixed by the Registrar, in which Sennek seeks, in part, a review of the Order of Miller J.A. respecting the appeal from the Order of Kershman J.;
vii) Notice of Motion, Court of Appeal File Number C63736, dated June 15, 2007 (sic), returnable on a date to be fixed by the Registrar, in which Sennek seeks, in part, a review of the Order of Miller J.A. respecting the appeal from the Order of Beaudoin J.;
viii) Notice of Motion, Court of Appeal File Number C63736, dated June 16, 2007 (sic), returnable on a date to be fixed by the Registrar, seeking, in part, a for review of the Order of Miller J.A. respecting the appeal from the Order of Roger J.; and
ix) Notice of Motion, Court of Appeal File Number C63736, dated June 16, 2007 (sic), returnable on a date to be fixed by the Registrar, seeking, in part, a review of the Order of Miller J.A. respecting the appeal from the Order of Sheard J.
Analysis: Motion to Adduce Fresh Evidence
[11] The two-part test for admitting new evidence in the context of a trial, set out Scott v. Cook, 1970 331 (ON SC), [1970] 2 O.R. 769 (Ont. H.C.) as followed by the Supreme Court of Canada in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59 was:
Would the evidence, if presented at trial, probably have changed the result? and
Could the evidence have been obtained before trial by the exercise of reasonable diligence? Applying that two-part test here, I conclude that the new evidence should be admitted.
[12] In more recent decisions, courts have applied a more relaxed or permissive approach when considering whether to admit fresh evidence. In Jackson v. Vaughan (City), 2009 CarswellOnt 152, it was argued that fresh evidence should be admitted if it is either likely to be conclusive of an issue or would probably have an important influence on the results of the case although it need not be decisive. Further, the evidence should be admitted since failure to admit the evidence would run the risk of a substantial injustice (Jackson, at para 16).
[13] A similar conclusion was reached by the court in Trade Capital Finance Corp. v. Cook, 2016 ONSC 5353. In both cases, the court took into account the fact that, if a conclusion had not yet been reached by the court, the standard ought to be somewhat relaxed, where the additional evidence was offered prior to the release of any judgment (Jackson, at para 22; Trade Capital, at para 43).
[14] The new evidence is very relevant to the issues before me on the Application. While on its own, the fresh evidence would not necessarily be conclusive, it will certainly have an important influence on the results of the case.
[15] The fresh evidence relates directly to principles that a court must consider on an application for a declaration that a litigant is a vexatious litigant.
Disposition on Motion to Admit Fresh Evidence
[16] For all the above reasons, I conclude that the fresh evidence as set out in the affidavit of Sonya Price should be admitted.
Vexatious Litigant Application
[17] CCC 116 sought an order that Sennek, and all the names or alter egos she uses: Manorama Sennek, Maneesh Saini, Mina Websford, Mina Sennek and M.S., be declared a vexatious litigant pursuant to section 140 of the Courts of Justice Act, RSO 1990, c C 43. CCC 116, further sought an order prohibiting and/or barring Sennek, directly or indirectly, from initiating or continuing any action, application, motion and/or proceeding without obtaining a leave of a judge of the Ontario Superior Court of Justice against CCC 116, its employees, past, present or future members of its Board of Directors; its current property management company, AL Reid Property Management and Consulting Services Limited (“Reid”) and/or any future property management company it might hire; any employees, officers and/or directors of Reid, including, but not limited to, Ms. Franziska Graf; and CCC’s solicitors, namely Elia Associates Professional Corporation (“Elia”) and any lawyers employed by Elia or who might provide legal services in conjunction with Elia including, but not limited to, Richard Elia, Eric Pelot, Megan Molloy, and Antoni Casalinuovo.
[18] The grounds for the application included that Sennek has breached and/or failed to comply with multiple orders and has initiated multiple proceedings since August 19, 2015 against CCC 116, its officers and directors, Reid, Ms. Graf, and Elia and the various lawyers employed by Elia or who provide legal services in conjunction with Elia.
[19] The evidence that supports those allegations is overwhelming and can be found in the application materials filed in support of the companion motion brought by CCC 116, also heard by me on March 17, 2017 in File Number CV-15-66501 (the “Lien Application”) in which Sennek was the applicant and CCC 116, the respondent.
[20] In my Reasons for Decision dated March 31, 2017, I dismissed the Small Claims Court Action initiated by Sennek, File Number SC-01-15-00137039-000 (the “Small Claims Action”) and the Lien Application because Sennek had failed to comply with the interlocutory orders made against her. As set out in those Reasons, on August 19, 2015, Sennek commenced the Small Claims Action seeking various relief against CCC 116, its Board of Directors and against Reid. On October 30, 2015 CCC 116 registered a lien in the amount of $763.14 against the Sennek unit. Rather than paying that under protest, which would have discharged the lien, Sennek commenced the Lien Application.
[21] Following the endorsement of the Small Claims Court judge, Sennek made the first of her many complaints to the Law Society of Upper Canada (“LSUC”) against CCC 116’s lawyers. Respecting each and every lawyer complaint lodged by Sennek, the LSUC determined that an investigation was not warranted and the file was closed.
[22] Sennek also sued CCC 116’s lawyers. On August 25, 2016 that claim was dismissed by Justice Beaudoin under the provisions of rule 2.1.01 (6) of the Rules of Civil Procedure, R.R.O. 1990, Reg 194. That Rule allows a Court to stay or dismiss a proceeding on the basis that it is frivolous, vexatious or an abuse of process of the court. As contemplated by the Rule, Beaudoin J. dismissed the claim upon the written request of Elia. In dismissing the claim, Beaudoin J. found that it was apparent “on the face of that Statement of Claim and from other decisions of this Court that this action may be frivolous, vexatious, and an abuse of process of the Court and that resort to rule 2.1 was appropriate.”
[23] By Order dated March 15, 2016, Justice Kershman required Sennek to undergo a capacity assessment. Sennek sought to appeal from that Order. In his endorsement dated August 2, 2016 Justice Beaudoin dismissed Sennek’s motion for leave to appeal to the Divisional Court from the Kershman Order. In his endorsement, Kershman J. set out the procedural background and history of this action and I do not repeat it here.
[24] Sennek failed to undergo the capacity assessment ordered by Kershman J.
[25] On the motion brought by CCC 116 to dismiss the Lien Application and Small Claims Action heard on March 17, 2017, Sennek filed a three-volume, 450 page responding record entitled “Affidavit & Exhibit Book”. It repeated and re-argued the same issues and concerns that had already been addressed by Justices Kershman, Beaudoin and Roger, the latter of whom ordered Sennek to comply with Kershman’s Order (Roger Order, dated October 21, 2016).
[26] As set out in my Reasons for Decision of March 31, 2017, I dismissed the Lien Application and the Small Claims Action.
[27] The affidavit of Sonya Price provided a chronology of legal proceedings initiated by Sennek after my Order of March 31, 2017. At the hearing before me on August 18, 2017, counsel for CCC 116 advised that Sennek had perfected her motion for leave to appeal from the decision of Miller J.A.
Analysis: The Vexatious Litigant
[28] The principles of a vexatious litigant as enumerated in Lang Michener Lash Johnston v. Fabian, 1987 172 (ON SC), 1987 CarswellOnt 378 (H. Ct.) are:
(a) the bringing of one or more actions to determine an issue which has already been determined by a Court of competent jurisdiction constitutes a vexatious proceeding;
(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;
(c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;
(d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;
(e) in determining whether proceedings are vexatious, the Court must look at the whole history of the matter and not just whether there was originally a good cause of action;
(f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious; and
(g) the respondent’s conduct and persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.
[29] Without question, all but one of those seven characteristics applies to the facts here. The exception is the failure to pay costs. Notwithstanding the repeated dismissal of Sennek’s claims or motions, the costs of those proceedings were reserved to be determined by a judge at a later date. The determination of costs was the original reason before me scheduled for August 18, 2017.
[30] Courts have held that the above principles are not exhaustive and that the applicants need not establish all of them (Howie, Sacks, & Henry LLP v. Wei Chen, 2015 ONSC 2501). Courts have also rightly concluded that the power to declare someone a vexatious litigant must be “exercised sparingly and with the greatest of care” (Howie, Sacks at para 27, quoting with approval from Dobson v. Green, 2012 ONSC 4432).
Disposition: Sennek is a Vexatious Litigant
[31] For the above reasons, I conclude that CCC 116 had established that each of the other six characteristics of a vexatious litigant exist here and that Sennek, and all the various names she has used as referenced above, should be declared a vexatious litigant and that the Orders sought in paragraphs 1.(a) and (b) of CCC 116’s Notice of Application was granted on August 18, 2017.
Costs
[32] As the successful party, CCC 116 is entitled to its costs of the Motion and of the Application. The amount of those costs, any interest that might be payable, and CCC 116’s entitlement to have those costs added to Sennek’s common expenses and secured under the Condominium Lien, registered to the title of Sennek’s unit were addressed by the parties at the costs hearing before me on August 18, 2017. My decision on costs for this and the related proceedings and will be dealt with by separate endorsement.
L. Sheard J.
Released: August 24, 2017
CITATION: Carleton Condominium Corporation No. 166 v. Sennek, 2017 ONSC 5016
COURT FILE NO.: CV-16-70954
DATE: 2017/08/24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Carleton Condominium Corporation No, 116
Applicant
– and –
Manorama Sennek a.k.a. Maneesh Saini, Mina Websford, Ms. Websford, Mina Sennek and M.S.
Respondent
Reasons FOR DECISION ON MOTION TO ADMIT FRESH EVIDENCE AND ON APPLICATION TO DECLARE RESPONDENT VEXATIOUS LITIGANT
L. Sheard J.
Released: August 24, 2017