Court File and Parties
COURT FILE NO.: CV-17-581094-0000
DATE: 20180522
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GOLFNORTH PROPERTIES INC., 883890 ONTARIO LIMITED and SHAWN EVANS
Applicants
– and –
VITTORIO VACCA a.k.a. VICTOR VACCA, DIANA VACCA and GREENWAY ESTATES HOMES LTD. IN TRUST
Respondents
COUNSEL:
G. Carr, for the Applicants
V. Vacca, on his own behalf
HEARD: April 16, 2018
REASONS FOR DECISION
SCHRECK J.:
[1] In 2006, Vittorio Vacca’s family sold some land near Erin, Ontario to Golfnorth Properties Inc. (“Golfnorth”). A disagreement which arose with respect to the sale agreement and a related take-back mortgage led to litigation. Mr. Vacca lost. His appeal to the Court of Appeal and his subsequent application for leave to appeal to the Supreme Court of Canada were unsuccessful. Mr. Vacca then initiated new proceedings in relation to the Erin property. Ultimately, he was unsuccessful once again. Mr. Vacca then commenced a new action against Golfnorth and its president, Shawn Evans. He has added as defendants lawyers who acted for him on the initial transaction.
[2] The applicants have been the defendants and respondents in all of the proceedings initiated by Mr. Vacca. They submit the history of this matter reveals a pattern of attempts by Mr. Vacca to re-litigate matters that have already been judicially determined. As a result, they seek an order pursuant to s. 140 of the Courts of Justice Act to have Mr. Vacca declared a vexatious litigant.
[3] For the reasons that follow, the application is granted.
I. FACTS
A. The Initial Transaction
[4] Mr. Vacca’s family owned some land near Erin, Ontario (“the Erin property”). In October 2006, the family agreed to sell the land to Golfnorth for $1,600,00.00. The Agreement of Purchase and Sale, which was between Golfnorth and Mr. Vacca’s daughter, Diana Vacca, provided that Golfnorth would pay $800,000.00 in cash and Ms. Vacca would grant a vendor take-back mortgage for $800,000.00. The mortgage agreement contained a clause stating that if certain planning permissions were not received within a set time, Golfnorth could refuse to pay the principal of the mortgage. If this occurred, Ms. Vacca had the option to repurchase the land for $1,200,000.00.
[5] The planning permissions mentioned in the mortgage agreement were not received and Golfnorth accordingly refused to pay the principal. The mortgage had by then been assigned to a corporation, 457351 Ontario Inc. (“457351”). Ms. Vacca and the corporation exercised their option to repurchase the land.
B. The 2012 Application
[6] The parties disagreed as to the proper interpretation of the mortgage agreement and whether the $1,200,000.00 repurchase price was to be reduced by the $800,000.00 representing the unpaid principal of the mortgage. The Vaccas took the position that it was, and Golfnorth took the position that it was not. In February 2012, Diana Vacca and 457351 commenced an application in the Superior Court at Guelph to have the issue determined.[^1] The Vaccas also raised a number of other issues based on allegations of various improprieties on the part of Golfnorth. At the time, the Vaccas and 457351 were represented by the same counsel.
[7] The application was heard on June 24, 2013 by Lemon J., who found in favour of Golfnorth.[^2] Both Diana Vacca and 457351 filed notice of appeal of Lemon J.’s decision to the Ontario Court of Appeal. Ms. Vacca’s appeal was later dismissed as abandoned. The appeal by 457351, which was represented by counsel, was heard in May 2014 and dismissed a few days later.[^3] An application for leave to appeal to the Supreme Court of Canada was dismissed on November 20, 2014.
C. The 2014 Action and Golfnorth’s Application to Discharge the Mortgage
[8] In July 2014, while the application for leave to the Supreme Court was pending, Mr. Vacca commenced an action naming Golfnorth, 883890 Ontario Inc. (“883890”), and 457351 as defendants. Mr. Vacca was by then self-represented. Many portions of the Statement of Claim repeat claims made about the Erin property purchase in the initial Notice of Application. The Statement of Claim alleged that Lemon J. made various errors in dismissing the Vaccas’ application.
[9] The 2014 Statement of Claim also related to another purchase of land near Fergus, Ontario which a company called Greenway Estates Home Ltd. (“Greenway”) had sought to purchase from a subsidiary of Golfnorth, 883890. Mr. Vacca is apparently the sole shareholder of Greenway.
[10] Golfnorth brought a motion to strike the claim. At around the same time, Golfnorth also commenced an application for an order discharging the Erin mortgage on the basis that the Vaccas had not completed the repurchase transaction. Ms. Vacca and 457351 were named as respondents.
[11] Both the application and the motion to strike were heard on December 1, 2014 by Mossip J. The following day, she struck Mr. Vacca’s claim[^4] and granted an order discharging the Erin mortgage.[^5]
[12] Diana Vacca appealed Mossip J.’s decision to discharge the Erin mortgage. Mr. Vacca appealed Mossip J.’s decision striking his claim. Both appeals were heard on May 13, 2015, with Mr. Vacca acting on behalf of his family in both. Ms. Vacca’s appeal was dismissed.[^6] With respect to Mr. Vacca’s appeal, the Court dismissed the appeal with respect to the discharge of the mortgage as well as the appeal of the motion to strike decision in relation to the Erin property. However, the Court allowed the appeal with respect to the Fergus property, but without prejudice to Golfnorth to bring a fresh motion under Rule 20 or Rule 21 of the Rules of Civil Procedure.[^7]
[13] Ms. Vacca applied for leave to appeal to the Supreme Court of Canada in relation to the dismissal of the appeal from the order discharging the mortgage. The application was dismissed on December 5, 2015. A subsequent motion for a reconsideration of the application for leave to appeal was dismissed by the Registrar on March 7, 2016.
[14] Following the Court of Appeal’s decision, Golfnorth brought a fresh motion to strike the claim with respect to the Fergus property. That motion was heard and granted by McSweeney J. on January 9, 2017.
D. The 2016 Action
[15] In October 2016, Mr. Vacca initiated the action that is before this Court. The plaintiff is identified as “Diana Vacca trustee owner resigned to Vittorio Vacca” and the defendants are identified as Golfnorth, Mr. Evans, 457351, and three lawyers who had acted for the Vacca family in relation to the Erin transaction: Maurizio Occhiuto, Jayson Schwarz and Don Kirsh. The Statement of Claim, while difficult to make sense of, seems to relate to the Erin mortgage and contains allegations that Golfnorth had misled Lemon J. during the initial application. It also alleges that Lemon J. made various errors.
[16] A motion to have the claim against the applicants dismissed on the basis that it is frivolous, vexatious and otherwise an abuse of the court’s process was heard at the same time as this application, as was a motion by one of the new defendants, Maurizio Occhiutto, to have the claim against him struck. In reasons being released concurrently with these, those motions were granted.[^8]
II. ANALYSIS
A. The Rationale for Vexatious Litigant Orders
[17] Mr. Evans, Golfnorth and 883890 apply pursuant to s. 140(1) of the Courts of Justice Act to have Mr. Vacca declared a vexatious litigant. That section provides as follows:
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.
[18] An order declaring a person to be a vexatious litigant is an extraordinary remedy that alters a person’s right to access the courts: Kallaba v. Bylykbashi (2006), 265 D.L.R. (4th) 320 (Ont. C.A.), at para. 31. It is an order that should not be made lightly.
[19] At the same time, judicial resources are not unlimited. Court time used by litigants to advance vexatious proceedings is not available to be used for other purposes. The consequences of this can be significant. As was made clear in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 and cases that follow it, one of those consequences may be that serious criminal charges are stayed, which affects the public’s confidence in the administration of justice.
B. Characteristics of a Vexatious Litigant
[20] The caselaw respecting vexatious litigant applications reflects that a primary concern is preventing the misuse of judicial resources. This can be seen in the list of characteristics commonly associated with vexatious litigants that was described in Re Lang Michener et al. v. Fabian et al. (1987), 59 O.R. (2d) 353 (H.C.), which was recently affirmed in Van Sluytman v. Orillia Soldiers’ Memorial Hospital, 2018 ONCA 32, at para. 23:
(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;
(g) the respondent's conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.
C. Application to This Case
[21] I am not persuaded that (c) of the Lang Michener characteristics applies in this case. I do not believe that Mr. Vacca’s action was brought for the purpose of harassing anybody. Rather, he genuinely believes that he has been wronged and seems to believe that if he keeps trying hard enough, the courts will one day grant him the relief he seeks. However, all of the remaining characteristics apply. Mr. Vacca has more than once sought to re-litigate issues that have been decided. No reasonable person would believe that the action now before the Court could succeed. The same grounds have been rolled forward in subsequent actions with the addition of claims against lawyers (albeit not lawyers who acted for him in the previous litigation). I am advised that he has never paid any of the costs awarded against him in earlier proceedings. Finally, he has persisted in taking unsuccessful appeals and applications for leave to appeal to the Supreme Court of Canada. In my view, Mr. Vacca amply meets the test for a vexatious litigant order.
[22] While Mr. Vacca will undoubtedly be unhappy with the conclusion I have reached, it is my hope that it will nonetheless be of some benefit to him. Mr. Vacca is 80 years old. He has been involved in the dispute surrounding the Erin property transaction for over a decade. It seems to have consumed him. Having heard his submissions, I have no doubt that he genuinely feels that he has been treated unfairly. I make no comment on the legitimacy of these feelings. However, regardless of whether they are legitimate, it is clear that he has thoroughly exhausted his legal options. With respect to these issues, he will never obtain any relief from the judicial system. It is my hope that this vexatious litigant order will finally stop him from tilting at windmills.
D. The Respondents Other Than Mr. Vacca
[23] Diana Vacca was a party to the initial application heard by Lemon J. She was represented by counsel. Although she was ultimately unsuccessful, her position was, in my view, arguable. She was also a respondent in Golfnorth’s application to have the Erin mortgage discharged, which was granted by Mossip J. She did not initiate the application, although she unsuccessfully attempted to appeal the decision. She was not a party to the action dismissed by Mossip J. or the action currently before the court.
[24] While there is a suggestion that Ms. Vacca was a nominee of Mr. Vacca, I have little evidence of what role, if any, she played in any of the litigation. Although she is named as a respondent in this application, the applicants have advanced no argument as to why she should be the subject of a vexatious litigant order. There is no basis for making such an order against Diana Vacca.
[25] With respect to the other respondent, Greenway, as Mr. Vacca is its sole shareholder, the order I am making will apply to any proceedings Mr. Vacca may attempt to initiate on its behalf.
III. DISPOSITION
[26] The application is granted. Pursuant to s. 140(1) of the Courts of Justice Act, Mr. Vacca is declared a vexatious litigant. As a result, he may not institute any further proceedings on his own behalf or on behalf of any corporation controlled by him in any court or continue any proceedings that he has previously instituted except by leave of a judge of the Superior Court of Justice in accordance with s. 140(3) and (4). However, Mr. Vacca is not restricted from appealing this order should he choose to do so.
[27] If the parties cannot agree on costs, the applicant may file written submissions of no more than three pages within 10 days of the release of this decision. Mr. Vacca may file written responding submissions of no more than three pages within 10 days of receiving the opposing parties’ submissions.
Schreck J.
Released: May 22, 2018.
COURT FILE NO.: CV-17-581094-0000
DATE: 20180522
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GOLFNORTH PROPERTIES INC., 883890 ONTARIO LIMITED and SHAWN EVANS
Applicants
– and –
VITTORIO VACCA a.k.a. VICTOR VACCA, DIANA VACCA and GREENWAY ESTATES HOMES LTD. IN TRUST
Respondents
REASONS FOR DECISION
Schreck J.
Released: May 22, 2018.
[^1]: An action by Ms. Vacca, 457351 and the Italian Canadian Savings & Credit Union Limited against Golfnorth raising the same issues was commenced at around the same time but later dismissed as abandoned.
[^2]: 457351 Ontario Inc. v. Golfnorth Properties Inc., 2013 ONSC 5298.
[^3]: 457351 Ontario Inc. v. Golfnorth Properties Inc., 2014 ONCA 382.
[^4]: Vacca v. GolfNorth Properties Inc., 2014 ONSC 6972.
[^5]: Golfnorth Properties Inc. v. 457351 Ont. Inc., 2014 ONSC 6962.
[^6]: Golfnorth Properties Inc. v. 457351 Ontario Inc., 2015 ONCA 419.