CITATION: Reyes v. Esbin, 2017 ONSC 601
COURT FILE NO.: CV-15-537370
DATE: 20170126
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ALLISON REYES and MEDHANIT YEREKAGEG
Plaintiffs
– and –
HARTLEY ESBIN, RHONDA DAWE, TIMOTHY M. DUGGAN, ROSS LYNDON, DAVID ADAMSON, MARIA GALIA, JOHANNE JOHDAN, ESBIN PROPERTY MANAGEMENT, ESBIN REALTY CORPORATION
Defendants
No one appearing for the Plaintiffs
Timothy M. Duggan, for the Defendants, Hartley Esbin, Rhonda Dawe, Ross Lyndon, David Adamson, Johanne Johdan, Esbin Property Management and Esbin Realty Corporation
No one appearing for the Defendant, Maria Galia
Althea Reyes, on her own behalf
Sara Blake, for the Attorney General for Ontario
HEARD: In writing
M.D. FAIETA j.
reasons for decision
INTRODUCTION
[1] On December 15, 2016 I granted a motion for summary brought by the defendants other than Maria Galia (the “EPM Group defendants”). I also dismissed a motion brought by Althea Reyes for intervenor status.
[2] The evidence at the hearing of the motions showed that Althea Reyes had been declared a “vexatious litigant” many years earlier by this court. The Order of Justice Kershman of the Superior Court of Justice, Family Court Branch, in Ottawa, dated June 9, 2009 and June 10, 2009, states:
THIS COURT ORDERS THAT … [t]he Applicant, Althea Reyes, is a vexatious litigant and that she not be permitted to commence or continue any proceedings in any court directly or indirectly relating to the child, [name omitted], without first having obtained leave from the Ontario Superior Court of Ottawa pursuant to section 140(1)(c) and 140(1)(d) of the Courts of Justice Act.
[3] It was also brought to my attention that a Judge of the Toronto Small Claims Court had, on November 8, 2016, stayed a related action by Althea Reyes in respect of the alleged conversion of her personal property against (some or all of) the EPM Group defendants and made the following Order:
Parties attended today. There is a similar action based upon substantially the same cause of action in the Ontario Superior Court in Toronto, CV-15-537370. Given the duplication of proceedings it is appropriate that this action SC-16-5572 be stayed. This is without prejudice to either party seeking to bring a motion to continue the matter.
To do so the plaintiff would be required to satisfy a motions judge that:
The Superior Court action had been dismissed or discontinued;
The Small Claims Court has jurisdiction and not the Landlord and Tenant Board;
That the plaintiff is not a vexatious litigant and accordingly she has obtained leave of the court to continue this action given the previous order of Justice Kershman dated June 8 and 10, 2009 requiring that this plaintiff obtain leave prior to commencing or continuing any proceeding. [Emphasis added]
[4] Given this context, I raised the following question with the parties and invited their written submissions:
I am considering making an order that no further proceeding be initiated by Althea Reyes in any court pursuant to s. 140(1)(c) of the Courts of Justice Act given that 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, Room 170, 361 University Avenue, Toronto by December 21, 2016 and by email to christine.cappadocia@ontario.ca.
[5] I have received submissions from the EPM Group defendants and the Attorney General for Ontario. Althea Reyes advised the Court that she would not be making any submissions.
[6] The Attorney General states that he will be commencing an application for an order under section 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “Act”) to declare Althea Reyes a vexatious litigant.
[7] The Attorney General also submitted that that “[t]here is nothing in the language of section 140 of the Act indicating that the relief may never be customized or tailored to particular proceedings, parties or courts, but rather must be an “all or nothing” proposition”. In response to that submission, I make the following observations:
At common law, a court has no authority to declare that a person is a vexatious litigant and thus barred from bringing or continuing any proceedings in any court without leave: see Kallaba v. Bylykbashi 2006 3953 (ON CA), [2006] O.J. No. 545, para. 116 (C.A.). While a court has the inherent jurisdiction to control its procedure and the actions of those persons who appear before the court in order to effectively carry out the judicial administration of justice, it is has no inherent jurisdiction to prevent a person from commencing a proceeding that may turn out to be vexatious: see Vexatious Litigants, Final Report, Law Reform Commission of Nova Scotia, April 2006, pages 7-8.
Since 1930, courts in Ontario have had the statutory authority to prohibit a vexatious litigant from instituting further legal proceedings: see Vexatious Proceedings Act, S.O. 1930, c. 24. This statutory authority, now found in section 140 of the Act, has been modified and expanded over the years.
Section 140 of the Act provides “a mechanism to prevent a litigant from instigating or conducting litigation for an improper purpose”. As such, an order under section 140 of the Act is “… aimed at the litigant, not at the litigation”: see Kallaba v. Bylykbashi 2006 3953 (ON CA), [2006] O.J. No. 545, paras. 113, 122 (C.A.). [Emphasis added]
The nature and purpose of section 140 of the Act was also explained by Blair, J. in Foy v. Foy (1979), 1979 1631 (ON CA), 26 O.R. (2d) 220, [1979] O.J. No. 4386, at paras. 66 and 67, as follows:
It is not difficult to perceive the object of the Vexatious Proceedings Act. The protection afforded honest litigants by the exercise of the Court's inherent jurisdiction to control abuse of process is subject to a serious limitation. It can only be exercised ex post facto. …
In its historical and legal context, the Act should be viewed as a statutory supplement to the protection afforded by the Court's inherent power to control abuse of process. That power extends, as I have already indicated, to proceedings of all types and is not limited to actions or other originating proceedings. [Emphasis added]
In making an order under s. 140(1) of the Act some courts have limited the application of such orders only to certain proceedings involving certain persons. See Landmark Vehicle Leasing Corp. v. Marino, 2011 ONSC 1671, paras. 45-49; Minga Mabi v. Skokos, 2011 ONSC 4240, paras. 37-41; Hawkins v. Schlosser, 2013 ONSC 2120, at paras. 62-69.
This approach was questioned by Justice Corbett in 626381 Ontario Ltd. v. Cote, 2015 45111 (ONSC), where he stated:
A discussion ensued about the scope of potential remedies under section 140. It is clear law that a general order under section 140 applies to all litigation brought by a litigant found to be vexatious, and a tailored order, such as the one granted by Justice Brown, while the rule for a common law order made on the basis of inherent jurisdiction, is the exception to the general rule for orders made under section 140.
- Subsection 140(1) of the Act does not give a Judge the statutory authority to bar a person from initiating or continuing a proceeding on such terms as are “just” or “appropriate”. While such language that provides broad statutory discretion is used repeatedly elsewhere in the Act (for instance, see ss. 25, 106, 137.1(9) of the Act), it is not used in s. 140(1) of the Act. Instead, the Act provides only two remedies once a person is found to be a vexatious litigant. A judge may order that no further proceeding be instituted by the person in any court and may order that 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.
[8] 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.
Mr. Justice M.D. Faieta
Released: January 26, 2017
CITATION: Reyes v. Esbin, 2016 ONSC 601
COURT FILE NO.: CV-15-537370
DATE: 20170126
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ALLISON REYES and MEDHANIT YEREKAGEG
Plaintiffs
– and –
HARTLEY ESBIN, RHONDA DAWE, TIMOTHY M. DUGGAN, ROSS LYNDON, DAVID ADAMSON, MARIA GALIA, JOHANNE JOHDAN, ESBIN PROPERTY MANAGEMENT, ESBIN REALTY CORPORATION
Defendants
REASONS FOR DECISION
Mr. Justice M.D. Faieta
Released: January 26, 2017