MOTION HEARD: 20180410
REASONS RELEASED: 20180522
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN:
ROBERT STEWART
Plaintiff
- and-
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, THE ATTORNEY GENERAL OF ONTARIO, THE COMMISSIONER OF THE ONTARIO PROVINCIAL POLICE, OTTAWA REGIONAL POLICE SERVICE BOARD, THE CHIEF OF POLICE OF THE OTTAWA REGIONAL POLICE, LOU OKMANAS, LYLE MacCHARLES, RICHARD RIDDELL, HEATHER LAMARCHE, CHRISTINA BENSON, JOHN RALKO, GARY DOUGHTERY, GEORGE SNIDER, IAN DAVIDSON, VIKKI BAIR, TERRY COOPER and DENIS GAUDREAULT
Defendants
BEFORE: MASTER M.P. McGRAW
COUNSEL: R. Stewart, Plaintiff, Self-Represented
E-mail: rob.kangaroojustice.com@gmail.com
E. Bala and A. Armstrong
-for the Defendants Her Majesty the Queen in Right of Ontario, the Attorney
General of Ontario, the Commissioner of the Ontario Provincial Police, Lyle
MacCharles, Richard Riddell, Heather Lamarche, Christina Benson, John Ralko
Gary Dougherty, George Snider, Vikki Bair and Terry Cooper (collectively, the
“Crown Defendants”)
E-mail: emtiaz.bala@ontario.ca
V. Genova
-for Richard Trudel, James Sauve and Richard Mallory, Plaintiffs in the Companian Action (the “Trudel Plaintiffs”)
E-mail: vgenova@rochongenova.com
REASONS RELEASED: May 22, 2018
Reasons for Endorsement
I. Introduction
1The parties bring the following 4 motions:
i.) the Plaintiff, Robert Stewart’s motion seeking the appointment of John Susin, a non-lawyer, as an amicus or friend of the court to assist him in these proceedings (the “Amicus Motion”);
ii.) the Crown Defendants’ motion to prevent Mr. Susin from attending on further examinations for discovery (the “Exclusion Motion”);
iii.) the Trudel Plaintiffs’ motion to exclude Mr. Stewart’s attendance by Skype, video conference or telephone at their examinations for discovery (the “Attendance Motion”)
iv.) Mr. Stewart’s motion for an order permitting him to conduct his examinations for discovery of the Defendants Richard Riddell and Heather Lamarche before the Trudel Plaintiffs (the “Examination Motion”).
II. History of These Proceedings
The Parties and this Action
2This action and the companion action commenced by the Trudel Plaintiffs (the “Companion Action”) arise from the prosecution of Mr. Stewart and the Trudel Plaintiffs (collectively, the “Plaintiffs”) for a double murder committed in Cumberland, Ontario near Ottawa on January 16, 1990. James Sauve and Richard Trudel were convicted in May 1996 and Richard Mallory and Mr. Stewart were convicted in February 2000.
3The Court of Appeal ordered new trials for Mr. Sauve and Mr. Trudel in 2004 and for Mr. Mallory and Mr. Stewart in 2007. On January 12, 2007, the Court stayed the prosecutions of Mr. Sauve and Mr. Trudel and the Crown stayed the charges against Mr. Mallory and Mr. Stewart shortly thereafter. The Court of Appeal described the criminal proceedings against Mr. Trudel and Mr. Sauve as “usually…complex”, beginning with a “lengthy and difficult” investigation that “produced a long and difficult trial” (R. v. Sauve, 2004 9054 (ON CA), [2004] O.J. No. 248 (C.A.) at paras. 68-69). Similarly, the Court of Appeal characterized the prosecutions of Mr. Stewart and Mr. Mallory as “a long and complex trial involving a number of discrete and difficult issues” (R. v. Mallory, 2007 ONCA 46 at para. 7).
4The Plaintiffs claim damages for, among other things, negligent investigation and malicious prosecution. Mr. Stewart commenced this action by Statement of Claim dated September 22, 2008 in which he claims $17,000,000 in general damages; $10,000,000 in special damages; aggravated damages of $1,120,000; punitive damages of $3,700,000; and criminal defence costs not funded by the Ontario Legal Aid Plan.
5The Trudel Plaintiffs commenced the Companion Action by Statement of Claim dated December 24, 2008 in which they each claim general damages of $19,835,850; special damages of $9,917,925; aggravated damages of $1,125,000; punitive damages of $3,750,000; and criminal defence costs not funded by the Ontario Legal Plan.
6Approximately 66,500 documents have been produced in these actions, including approximately 50,000 documents by the Crown Defendants in electronic format, some dating back to 1990.
John Susin’s Involvement, Vexatious Litigant Orders and Contempt Orders
7Mr. Susin is not a lawyer or a paralegal. However, he has provided some form of legal services and assistance to the Plaintiffs at various times over the last 10 years, especially Mr. Stewart. At times, he and Mr. Stewart have referred to Mr. Susin as his “manager”.
8Mr. Susin drafted the pleadings and prepared affidavits of documents for the Plaintiffs in both actions. He also drafted correspondence for John Weingust, a lawyer who represented the Trudel Plaintiffs until 2010 and Mr. Sauve and Mr. Stewart from 2015-2016. When Mr. Weingust retired in or about November 2016, Mr. Sauve joined the other Trudel Plaintiffs as clients of Mr. Genova and Mr. Susin assumed an expanded role assisting Mr. Stewart preparing motion materials and corresponding with counsel. Mr. Stewart also retained 3 lawyers in 2016 and continues to obtain legal advice from his friend Glen McAllister, an Alberta lawyer.
9Mr. Susin has an extensive history as a vexatious litigant in Ontario. Since 2005, he has twice been declared a vexatious litigant. He has also been incarcerated twice for contempt, including in January 2018 as he participated on a telephone case conference with respect to these motions. This was not disclosed to me at the time.
10As set out in Bono General Construction Ltd. v. Susin, [2005] O.J. No. 7 (S.C.J.), Mr. Susin was first declared a vexatious litigant by Matheson J. on January 6, 2005:
“43 I find that over a period of some 13 years, the respondent has repeatedly brought judicial proceedings raising the same issue.
44 I have attempted to list all the actions that Susin has brought as against the Bonos and their company. I might have missed some.
45 The respondent had failed to honour the costs that have been awarded against him in a punctual manner or at all.
46 He has ignored orders of the court.
47 He has tried to avoid some orders of the court by trying to go to other court jurisdictions.
48 He has repeatedly appealed decisions after he has obtained an adverse ruling, and they have been dismissed, with one exception.
49 For these reasons, I find that the respondent has brought repeated vexatious proceedings, and I am therefore granting an Order under Section 140 of the Courts of Justice Act.
50 Susin or any corporation, partnership or other entity which he may have a legal or beneficial interest in shall not commence any judicial proceeding, motion as against the applicants, Erik Savas and any member of the law firm of Simpson Wigle, except with leave of a Judge of the Superior Court.”
11Pursuant to the Order of Quinn J. dated July 23, 2008, Mr. Susin was declared to be a vexatious litigant for a second time (the “Vexatious Litigant Order”). Pursuant to the terms of the Vexatious Litigant Order, the restrictions on Mr. Susin were expanded from specific actions to bar him from instituting or continuing any proceedings or motions in which he may have a legal or beneficial interest except with leave of a Judge (Susin v. Susin, 2008 CarswellOnt 8783 at para. 2(1)).
12In upholding the Vexatious Litigant Order, the Court of Appeal stated the following:
“Although the reasons of the motion judge are sparse, a review of the record shows that there was ample evidence to support his finding that the appellant is a vexatious litigant. His conduct in this case is indicative of his persistent and unwarranted pursuit of legal proceedings that are both meritless and frivolous. His conduct has resulted in enormous inconvenience and expense, over many, many years, to opposing litigants and in this era of strained court resources, he can no longer be permitted unrestrained access to the courts of Ontario.”(Susin v. Susin, 2009 ONCA 231 at para. 4).
13Mr. Susin’s conduct continued and he was found in contempt of the Vexatious Litigant Order by Low J. on October 1, 2010. Further, he was imprisoned overnight on January 12, 2016 for contempt instanter as set out in the decision of J.A. Ramsay J. in Susin v. Susin, 2016 ONSC 311:
4 The history of the litigation is summarized in Susin v. Susin, 2014 ONCA 733. In briefest recapitulation, John Susin (senior) died in 1997, leaving his residence to be divided among his 8 children, subject to a life estate in his wife. John Susin (junior) took the position that he was the beneficial owner of his father's house and continued to live in the house long after his parents were both dead. One executor, Fermino Susin, opposed John. The other, Dorino Susin, supported him. In 2007, Turnbull J. rejected John's claim, threw him out of the house and ordered the house to be sold. He removed Dorino as executor and ordered that the proceeds of sale of the house be distributed among the beneficiaries subject to a first charge for the estate's costs. The house was sold and the proceeds after expenses went into a trust fund. Fermino Susin deposes, and I accept, that when he was trying to get John out of the parental home, John said that he would deplete the estate. John has succeeded in doing this. John has brought dozens of motions to which the estate has been obliged to respond. For example, seven judges were required to rule that the estate questions should be heard in Welland, as opposed to anywhere else. The system is hard pressed to cope with the exceptional litigant who is both energetic and ruthless.
5 After paying legal fees occasioned by successfully defending John's litigation, about $30,000 is still in the trust account, but Ms Hoy, the accountant and the executor are owed at least that much. There are several cost orders outstanding against John, Dorino and now Esther. John owes the estate occupation rent ordered by Turnbull J. and Dorino Susin guaranteed that debt. This debt, too, is outstanding. The executor reasonably believes that he ought not to pass his accounts and wind up the trust without first making an effort to collect these debts.
6 In 2008 Quinn J. declared John a vexatious litigant and ordered that he not commence any judicial proceeding without leave of the court and that he could bring no proceeding against the estate without first satisfying all outstanding cost orders. John then began having his siblings file motions for him, motions that he would argue as their agent or as amicus curiae. On January 10, 2014 I ordered that John could not appear as agent for his siblings or as amicus curiae. Thereafter John continued litigating through siblings but always behind the scenes. In the present case, Dorino Susin appeared for Esther to adjourn what purported to be her motion made through her counsel, Mr Mostyn. Mr Mostyn later deposed that he did not consent to the filing of this motion under his name. John had initially consulted him. He told John that he would not act for him and he was never retained by Esther. Mr Mostyn has been a respected member of a regulated profession for 50 years. His evidence is convincing.
16 John Susin disrupted the hearing by interrupting Ms Hoy's oral submissions repeatedly. After a number of warnings I found him in contempt instanter and committed him to prison overnight. I adjourned the hearing of the motion against John to a date to be arranged and directed that it be heard by a different judge.”
14On October 20, 2017, two days after a telephone case conference with respect to the Exclusion Motion, Mr. Susin was again found in contempt of the Vexatious Litigant Order. As set out in the decision of D.L. Edwards J. in Susin v. Susin, 2018 ONSC 148, as a result Mr. Susin’s ongoing disregard for the Vexatious Litigation Order, he was imprisoned on January 5, 2018 for 30 days:
18 Since Mr. Susin was declared a vexatious litigant in 2008 he has carried on in complete disregard of that order. I do not accept that this was inadvertent and I do not accept Mr. Susin's explanation that he believed that he was not breaching the order. That is simply inconsistent with the facts. Further, Mr. Susin himself states that he knows more law than most lawyers and has argued before the Court of Appeal several times. He is not a neophyte, who could be excused for misunderstanding court orders.
19 For example, on October 1, 2010 Justice Low found that Mr. Susin was in contempt of the Vexatious Litigant Order. She concluded that Mr. Susin was "ungovernable". However, because he was 81 years old at the time, and had stated that he had coronary disease, Justice Low did not place him in jail. Rather she directed that the Registrars of Welland and Toronto not accept any process documents that would be contrary to the Vexatious Litigant Order.
20 Stymied in Welland and Toronto, Mr. Susin went to Newmarket and commenced an application. In 2014, Justice Mullins dismissed that application and ordered all Registrars in Ontario (except for Welland and Toronto who had already been directed) to not accept any process documents which contravened the Vexatious Litigant Order.
21 Mr. Susin repeated those actions twice more in Newmarket; this time trying to set aside the Vexatious Litigant Order.
22 There are further examples, but the point is clear: these actions constitute significant aggravating factors over a significant period of time.
23 Mr. Susin has not apologized or expressed any remorse. His sole attempt to improve matters was to write to Ms. Hoy after my finding of contempt to ask her how he could purge his contempt. It is not Ms. Hoy's duty to advise Mr. Susin.
24 Therefore, with respect to Mr. Susin's conduct there are no mitigating factors.
25 There is the question of Mr. Susin's age. He is either 88 or 89. He states that he has a heart condition, but has not provided any medical evidence to support this. When asked why he did not, his answer was that he was certain that the penalty phase would not proceed today because he was asking that it not proceed. He has had over two months to prepare his submissions on penalty. He should have been prepared. In the past he has been singularly unsuccessful in the myriad of issues that he has raised regarding his father's estate before numerous judges. He states that he is very knowledgeable about the law and process. He should have been prepared for today.
26 In 2010, he escaped jail on that contempt motion because of his age and purported health issues. Unfortunately, the penalty imposed upon him in 2010 did not have the effect of compelling obedience, nor did it apparently punish disobedience. Mr. Susin has continued to breach the Vexatious Litigant Order.
30 I note that there is currently an order that no Registrar in Ontario should accept a process document that would violate the Vexatious Litigant Order, and yet Mr. Susin has been able to file numerous notices of motion since the dates of that order. The court system is simply not equipped to properly cut these matters off initially, and Mr. Susin is not prepared to self-govern his own actions.
31 I am satisfied that Mr. Susin has already had the benefit of a penalty that did not include jail, and yet, as I have noted, since that order in 2010 and then later in 2014, Mr. Susin has continued to breach the Vexatious Litigant Order.
34 Mr. Susin was declared a Vexatious Litigant in 2008. In 2010, he was found to be in contempt of that order. As of the contempt hearing in October 2017, he continued to take actions which violate the Vexatious Litigant Order.
35 These actions have been ongoing, significant and very damaging to the Estate and his siblings.
36 Justice Price, sometime ago, warned Mr. Susin that if he was found in contempt he could well face jail time. This warning did not have any effect in compelling compliance.
37 Mr. Susin's brother was found in contempt and spent time in jail. That has not had the effect of altering Mr. Susin's behaviour, nor has the one night in jail that he spent after Justice Ramsay found him in contempt instanter.
38 I am satisfied that nothing short of a significant period of incarceration will have the effect of compelling compliance and punishing disobedience.
42 There are no cases directly on point. However, I am satisfied that when I consider the nature of the contempt; its ongoing nature; the willfulness of the contempt; and the impact in terms of cost and time upon the Estate and Mr Susin's siblings, in the absence of his age and alleged health issues, I find that a sentence of incarceration in the range of 6 months to 9 months would be a fit sentence, the purpose of which is to compel compliance and punish disobedience.
43 However, I am prepared to take into consideration Mr. Susin's age and reduce that sentence to a period of incarceration of 30 days. As this is not a criminal sentence, there is no parole or remission. Mr. Susin shall spend 30 days incarcerated.
44 Mr. Susin shall appear at 4pm on January 12, 2018 at the Welland Courthouse to begin his incarceration, unless the judge hearing in motion under Rule 60.11(8) otherwise determines.
45 Prior to the end of the motion today, I advised Mr. Susin that I had not determined the appropriate penalty, but that since incarceration was a potential penalty, he should come prepared to begin a period of incarceration on that day.”
15On March 1, 2018, shortly after his release from custody, Mr. Susin appeared before J.M. Fairburn J.A. on a motion seeking an extension of time to set aside an order requiring him to post security for costs. As set out in 2018 ONCA 220, Fairburn J.A. summarized Mr. Susin’s conduct as follows:
17 Since this court dismissed John Susin's effort to have the vexatious litigant designation set aside almost a decade ago, at a minimum, it appears that he has brought motions before over fifteen different judges, on over twenty different days, in at least four different jurisdictions. The respondent has faced the daunting task of attempting to navigate his way through this labyrinth of litigation brought by John Susin, all the while facing an increasingly dwindling estate.
18 The sea of court orders, endorsements and decisions in this matter reinforce the status of John Susin as a vexatious litigant, one who frequently manages to obtain court dates in defiance of the 2008 order that he not commence or continue any judicial proceeding or motion except with leave of the Superior Court of Justice. As noted by Ramsay J. in Susin v. Susin, 2015 ONSC 5896: "This is one of the most extreme examples of persistent vexatious litigation that I have ever encountered. Further abuse of the court system must be halted decisively and without delay."
19 In the hope that it might assist those who may be confronted with John Susin's attempts to file documents in court, I refer to the 2008 order of Quinn J. As noted in that order, John Susin is not permitted to commence or continue any judicial proceeding or motion except with leave of the Superior Court of Justice. Nor is he permitted to seek leave to commence or continue any judicial proceeding, action or motion against Fermino Susin or the estate or beneficiaries of the estate of John Susin Sr., or its executors, unless "all outstanding cost awards owing to Fermino Susin and the Estate of John Susin Sr. by John Susin Jr. are paid in full". For convenience, I append the 2008 vexatious litigant order to these reasons.
16Mr. Susin’s involvement in the present proceedings has been characterized by his ongoing personal and professional attacks and allegations of improper conduct against Mr. Bala and Mr. Genova and a failure to cooperate with other parties. Mr. Stewart’s Factums on these motions are replete with such attacks and allegations which are more prominent than arguments with respect to the merits and the actual positions of the other parties. Mr. Stewart submits in one Factum that Mr. Bala acted in contempt of court and the Crown Defendants have “unclean hands” as a result of submissions made before Hood J. on May 11, 2017 when it was ordered that these actions be case managed together, still arguing that Hood J. lacked jurisdiction to do so. Mr. Susin has also accused counsel of fraud, misleading the court, undermining the justice system, withholding vital evidence and misinterpretations of basic Rules and Law.
17It is also alleged that in these proceedings Mr. Susin has scheduled motions without notice; sent improper and misleading correspondence to Archibald J.; participated in a Judicial case conference call without identifying himself; and attended before Hood J. and attempted to make submissions though he was expressly prohibited from doing so by Archibald J.
18Perhaps most tellingly, as set out below, Mr. Susin did not comply with this court’s directions and the terms agreed to by the parties which permitted him to assist Mr. Stewart during examinations for discovery.
These Motions, Examinations for Discovery and Case Management
19The Exclusion Motion first came before me on September 27, 2017. The Crown Defendants sought an order excluding Mr. Susin from attending examinations for discovery scheduled for October 23-27, 2017.
20Given Mr. Stewart’s need for assistance, the nature and complexity of these actions, voluminous productions and risk of further delay, I encouraged the parties to attempt to find a resolution which would permit Mr. Susin to attend on examinations for discovery to assist Mr. Stewart. All discussions were on the express qualification that even if Mr. Susin were permitted to attend examinations for discovery, the parties would have the option to arrange a telephone case conference with me on short notice to seek directions under Rule 34.14 if issues arose during the course of discoveries that the parties could not otherwise resolve consensually.
21The Exclusion Motion was adjourned sine die to permit the Crown Defendants to obtain instructions. As set out in my Endorsement from the telephone case conference held on October 18, 2017, the parties agreed on the following terms and conditions with respect to Mr. Susin’s attendance:
i.) Mr. Susin may attend and observe the examinations for discovery of all parties to this action and the Companion Action as requested by Mr. Stewart;
ii.) Mr. Susin shall not speak on the record during the examinations for discovery of any party in both actions, including the examination of Mr. Stewart;
iii.) Mr. Susin shall not, the same as counsel, pass notes to Mr. Stewart during Mr. Stewart’s examinations for the purpose of assisting him with answering questions or providing evidence and may only assist Mr. Stewart if requested by examining counsel; however, Mr. Susin is permitted to pass notes to Mr. Stewart solely for the purpose of objecting to questions, taking questions under advisement or providing undertakings so that Mr. Stewart can state them on the record;
iv.) if any issues arise during the course of discoveries that the parties cannot otherwise resolve consensually they could arrange a telephone case conference with me on short notice to seek directions under Rule 34.14 (the “October 18 Endorsement”).
22Four additional telephone case conferences were held prior to the hearing of these motions. The first took place on November 30, 2017 where these motions were initially scheduled to proceed on January 26, 2018. On January 17, 2018 and January 22, 2018, an adjournment was spoken to and ultimately granted to permit the cross-examination of Mr. Stewart on affidavits filed on these motions. Another telephone case conference was held on February 15, 2018 to speak to issues raised by the Plaintiffs with respect to the organization of the Crown Defendants’ productions.
III. The Law and Analysis
The Amicus Motion
23Mr. Stewart seeks the appointment of Mr. Susin as an amicus thereby expanding Mr. Susin’s role in assisting him in these proceedings. The Crown Defendants oppose the appointment of Mr. Susin as an amicus and request an order excluding him from attending further examinations for discovery.
24Mr. Stewart relies on Rules 13.01 and 13.02 which state:
13.01 (1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,
(a) an interest in the subject matter of the proceeding;
(b) that the person may be adversely affected by a judgment in the proceeding; or
(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.
(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just.
13.02 Any person may, with leave of a judge or at the invitation of the presiding judge or master, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument.
25The Crown Defendants submit that, given the expanded role sought for Mr. Susin and as a result of the Vexatious Litigant Order, Mr. Stewart requires leave of a Judge to bring the Amicus Motion. Subject to my comments below regarding the application of Rule 13.01, I reject this submission.
26Notwithstanding Mr. Susin’s assistance and the relief sought, this is Mr. Stewart’s motion and action, not Mr. Susin’s. The issues before me are with respect to Mr. Susin’s proposed expanded and continued assistance of Mr. Stewart, not Mr. Susin’s conduct as a litigant, which is the subject of the Vexatious Litigant Order. Further, when I offered the Crown Defendants and the Trudel Plaintiffs the opportunity to have the Amicus Motion heard by a Judge, they declined. In any event, given my conclusions below, the issue of leave is moot.
27Mr. Stewart submits that the terms of the October 18 Endorsement should be “made more effective” by appointing Mr. Susin as a friend of the court to permit Mr. Susin to utilize his “legal training and experience” and have “the same privileges as a lawyer would have during the examination”. Mr. Stewart also argues that Mr. Susin “has a history of having been successful in impeaching witnesses”. Mr. Stewart submits that he will suffer prejudice without Mr. Susin’s expanded assistance. Mr. Stewart relies on Trempe v. Reybroek, [2002] O.J. No. 269 (S.C.J.) in which Malloy J. considered the factors and the court’s discretion under Rule 13.01.
28I conclude that Rule 13.01 and Trempe have no application to the Amicus Motion. Rule 13.01 and Trempe deal with the addition of intervenors as parties to an action or another step in a proceeding, such as a motion. Mr. Susin is not seeking to add himself as a party and Mr. Stewart cannot bring a motion under Rule 13.01 to do so. This would require Mr. Susin to bring his own motion for leave under Rule 13.01 which, pursuant to the terms of the Vexatious Litigant Order, would require leave of a Judge.
29Accordingly, the only relief which Mr. Stewart can seek in these circumstances is under Rule 13.02 which may be brought by “any person”. However, a motion under Rule 13.02 must be brought “at the invitation of the presiding judge or master”. Given that I have not and am not extending such an invitation, this would seem to be a full answer and stop to Mr. Stewart’s motion. However, I will proceed to consider the relevant factors below.
30In Groia v. Law Society of Upper Canada, 2014 ONSC 6026, Nordheimer J., sitting as the Divisional Court, summarized the principles which apply on a Rule 13.02 motion at para. 4:
“(i) the matters to be considered are the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties: Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 6886 (ON CA), 74 O.R. (2d) 164 (C.A.).
(ii) where the intervention is in a Charter case, usually at least one of three criteria is met by the intervener: it has a real substantial and identifiable interest in the subject matter of the proceedings; it has an important perspective distinct from the immediate parties; or it is a well-recognized group with a special expertise and a broadly identifiable membership base: Bedford v. Canada (Attorney General) (2009), 2009 ONCA 669, 98 O.R. (3d) 792 (C.A.).
(iii) the submissions to be offered by the proposed intervener must be useful and different from those of the parties: R. v. Finta, 1993 132 (SCC), [1993] 1 S.C.R. 1138.
(iv) the threshold for granting intervener status in a public interest or public policy case is lower than it is for a private interest case: Jones v. Tsige (2011), 2011 99894 (ON CA), 106 O.R. (3d) 721 (C.A.).
(v) in Charter cases, it is recognized that it is important for the court "to receive a diversity of representations reflecting the wide-ranging impact of its decision": Ontario (Attorney General) v. Dieleman (1993), 1993 5478 (ON SC), 16 O.R. (3d) 32 (Gen. Div.).
(vi) the fact that the proposed intervener is not indifferent to the outcome of the appeal is not a reason to deny it the right to intervene: Oakwell Engineering Ltd. v. Enernorth Industries Inc., [2006] O.J. No. 1942 (C.A.).”
31In Dominion of Canada General Insurance Co. v. Kingsway General Insurance Co., 2011 ONSC 1249, in dismissing a cross-motion by an underinsurer to intervene in a personal injury action H.S. Arrell J. stated:
“28 The contract in issue, and the rights under it, is between Kingsway and Mr. Ross. Counsel for Dominion was unable to cite any authority to support his argument but instead asks me to find that section 146 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and the fact that Dominion is a party in the main action makes it a "friend of the court" and thereby should have intervenor status. I disagree.
29 The Dominion is not a friend of the court as that term is judicially understood which connotes an element of impartiality or altruism. There is no such altruism here. The Dominion has only one motive and that is to force Kingsway to pay the significant costs and disbursements of defending this action until such time as a resolution occurs. As MacPherson, J. confirmed in Peixeiro v. Haberman (1994), 1994 7322 (ON SC), 20 O.R. (3d) 666 (Gen. Div.),
The courts will be extremely suspicious as to whether the proposed intervenor wants to "assist" the courts, or, in reality, "assist" the private interest of the client..
30 The case at bar is a common negligence action of a private nature and as such rule 13 will be narrowly construed and does not have application to this case. Regional Municipality of Peel and Attorney General of Ontario v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 6886 (ON CA), 74 O.R. (2d) 164 (C.A.); Peixeiro, supra.”
32At common law, an amicus is a disinterested person appointed to assist the court, represent unrepresented interests, inform the court of some fact or circumstance that the court may otherwise be unaware of and/or advise the court of a point of law (R. v. Cairenius, 2008 28219 (ON SC), [2008] O.J. No. 2323 (S.C.J.) at para. 48). The test for the appointment of an amicus has two components: i.) the assistance of the amicus must be essential to the judge discharging her judicial functions in the case at hand; and ii.) the authority to appoint an amicus should be used sparingly and with caution, in response to specific and exceptional circumstances (R. v. Imona-Russell, 2013 SCC 43 at paras. 47 and 115; Morwald-Benevides v. Benevides, 2017 ONCA 699 at para. 30).
33In my view, similar to Dominion, this Court should be suspicious of Mr. Susin’s offer to assist in the present circumstances. Contrary to the plain wording of Rule 13.02 and the relevant case law, the purpose of Mr. Susin’s proposed appointment is not to render assistance to the court by way of argument. Rather, Mr. Stewart’s stated purpose in seeking to have Mr. Susin appointed is to assist him as a party in these proceedings. This is inconsistent with the purpose of the appointment of a friend of the court under Rule 13.02 and an amicus generally. Further, the threshold which Mr. Stewart must meet is higher, and Rule 13.02 must be construed more narrowly given that he seeks Mr. Susin’s appointment to assist him in advancing his private interests in this civil action.
34Applying the relevant factors, Mr. Susin is not an impartial, disinterested person with altruistic motives. If appointed as a friend of the court, he would not provide useful submissions which are different than those of the parties, in fact, he would be advocating for Mr. Stewart, a Plaintiff. In this regard, any “assistance” which Mr. Susin would provide would “assist” the private interests of Mr. Stewart, not the court. He would also not be advising the court of any circumstances of which the court is unaware or on a point of law. For this, and the reasons described above, I conclude that any assistance provided by Mr. Susin is not essential to the discharge of the court’s duties.
35To appoint Mr. Susin, a non-lawyer, as an amicus would also be contrary to Rule 15.01(1)-(3), which provides:
15.01 (1) A party to a proceeding who is under disability or acts in a representative capacity shall be represented by a lawyer.
(2) A party to a proceeding that is a corporation shall be represented by a lawyer, except with leave of the court.
(3) Any other party to a proceeding may act in person or be represented by a lawyer.
36Mr. Stewart specifically requests Mr. Susin’s appointment in order that Mr. Susin may have “the same privileges as a lawyer would have during the examination”. Pursuant to section 1(7) of the Law Society Act (Ontartio)(the “LSA”), conducting an examination for discovery and engaging in other conduct necessary to the conduct of a proceeding are considered to be representing a person in a proceeding. A non-lawyer such as Mr. Susin is prohibited from doing so pursuant to Rule 15.01 and section 26.1(1) of the LSA which provides that no person other than a licensee shall practice law or provide legal services in Ontario.
37Mr. Stewart further argues that Mr. Susin falls within the “friend or neighbor” exception in By-Law 4, section 30(4) of the LSA which provides that an individual without a license may provide legal services if: i.) their professional or occupation is not the provision of legal services or the practice of law; ii.) they provide legal services on for and on behalf of a friend or a neighbor; iii.) they provide legal services in respect of no more than 3 matters per year; and iv.) they do not expect and do not receive any compensation for the provision of the legal services. Mr. Susin does not meet all 4 criteria, including the fact that Mr. Stewart is not a friend or a neighbor, but rather someone who approached him and who he first met for the express purpose of providing assistance with this litigation. Mr. Stewart has also not established that Mr. Susin is not being compensated for his services.
38All of this is before any consideration of Mr. Susin’s history as a vexatious litigant generally and his conduct in these proceedings specifically, particularly after he was permitted to attend examinations for discovery pursuant to the October 18 Endorsement. This is relevant to, among other things, the requirement that the court’s discretion to appoint an amicus must be exercised sparingly and with caution and in response to specific and exceptional circumstances.
39As set out above, Mr. Susin’s conduct as a vexatious litigant has been well documented by many Judges over a period of approximately 13 years. Judges have found him to be “ungovernable”, “one of the most extreme examples of persistent vexatious litigation that I have ever encountered” and that he has persistently disregarded the Vexatious Litigant Order for approximately 10 years. He has twice been found in contempt of the Vexatious Litigant Order and imprisoned twice.
40Notwithstanding Mr. Susin’s history and previous disruptive conduct in these proceedings, in the interests of efficiency and assisting Mr. Stewart with the task of navigating examinations for discovery, by agreement of the parties and my directions, he was given an opportunity to attend examinations for discovery. The terms were necessarily narrow, and in my view, reasonable, limiting Mr. Susin to a limited supporting role for the purpose of assisting Mr. Stewart so that examinations for discovery in this long delayed action could proceed in a timely and efficient manner.
41Unfortunately, as set out below, Mr. Susin did not comply with the terms of the October 18 Endorsement, speaking on the record; interrupting the examinations to make comments and accusations about opposing counsel; nudging, elbowing and coaching Mr. Stewart including providing him with verbal and written answers; and answering and refusing questions on Mr. Stewart’s behalf.
42In my view, Mr. Susin has demonstrated in these proceedings that even when given an opportunity to act in Mr. Stewart’s best interests and assist him, he is unwilling or incapable of doing so without disruption. Accordingly, to appoint Mr. Susin as an amicus would be inconsistent with the requirement that this court exercise caution in considering such an appointment. It would also be contrary to the requirement that the court disqualify any agent for a party who is ethically incompetent such that they cannot be relied upon to conduct their principal’s representation in an honest and ethical manner with integrity, honesty and forthrightness (see Ontario v. Deutsch, [2004] O.J. No. 535 at para. 20).
43Further, although Mr. Stewart submits that Mr. Susin’s assistance is necessary to avoid prejudice to him, I am not satisfied that this is the case, nor can I conclude that these are specific and exceptional circumstances which would justify the appointment of Mr. Susin as amicus. Mr. Stewart explains that his negative experiences with lawyers date back to his attempts to retain counsel to represent him in overturning his conviction. These experiences have led him to be an advocate for the wrongfully convicted and a staunch critic of the legal profession, particularly Ontario lawyers and criminal defence lawyers, for which he maintains a website.
44Mr. Stewart also believes that Mr. Susin “has displayed a superior knowledge of the Rules and Law based upon 3 years of legal training and experience over 28 years, on behalf of his own Corporations”. Mr. Stewart also submits that he cannot afford a lawyer.
45At the same time, Mr. Stewart retained 3 different lawyers in 2016 and continues to consult Mr. McAllister. Mr. Stewart also acknowledges that he has not made any recent efforts to retain new counsel. There is also no evidence before me that Mr. Stewart is unable to pay for counsel, in fact, it is not clear whether Mr. Susin is being compensated for his assistance given that Mr. Stewart has refused to answer any questions on cross-examination in this regard.
46As such, I conclude that Mr. Susin’s assistance is not necessary for the trial Judge to discharge her duties or for a fair trial, or the only option. Rather, it is Mr. Stewart’s preference that Mr. Susin continue to assist him, not a lawyer. In my view, these are not exceptional and specific circumstances justifying this Court’s exercise of its discretion to appoint Mr. Susin as an amicus.
47Having considered all of the relevant factors and circumstances, I conclude that it is just and appropriate in the circumstances to dismiss the Amicus Motion.
The Exclusion Motion
48Having dismissed the Amicus Motion, I must consider the Exclusion Motion, namely, whether Mr. Susin should be permitted to attend further examinations for discovery not as an amicus but in order to assist Mr. Stewart substantially on the same terms as the October 18 Endorsement. Examinations for discovery of Mr. Mallory and Mr. Trudel and the Crown Defendants are currently scheduled for September 2018.
49I reject Mr. Stewart’s preliminary submission that the terms of the October 18 Endorsement which permitted Mr. Susin to attend on discoveries now prevent or bar the Crown Defendants from seeking to exclude Mr. Susin under the doctrines of res judicata, issue estoppel, and abuse of process. In the October 18 Endorsement, the result of the first return of the Exclusion Motion, my directions and the parties’ agreement explicitly provided that if any issues arose, as a result of Mr. Susin’s attendance or otherwise, the parties could seek further directions and/or the terms could be revisited. The Exclusion Motion was adjourned while the parties proceeded with examinations for discovery. Given their concerns regarding Mr. Susin’s conduct at the examinations, the Crown Defendants, with the support of the Trudel Plaintiffs, have elected to bring the Exclusion Motion back before this Court. They are well within their rights to do so.
50In Rikhye v. Rikhye, 2017 ONSC 4722, I.S. Bloom J. summarized the principles applicable to the attendance of non-parties on cross-examinations (which also apply to examinations for discovery, see DeGrandis v. 1123951 Ontario Limited, 2016 ONSC 4335):
“7 The following principles emerge from two judgments of the Ontario Superior Court of Justice, the judgment of Master Dash in Poulton v. A.&P. Properties Limited, 2005 4105 and the judgment of Master Muir in DeGrandis v. 1123951 Ontario Limited, 2016 ONSC 4335:
since a cross-examination on an affidavit is not a public hearing, a non-party may attend to assist a party only on the consent of the other side or on the order of the court;
the onus is on the party seeking such an order to prove entitlement to it;
the non-party should not be a witness at the subsequent trial;
the attendance of the non-party must not disrupt the examination process; and
the non-party must not take the role of witness or assist the witness in answering questions.
8 I add to those principles the principle, which is inherent in our system of justice, that a court in exercising its jurisdiction as to whether to allow the presence of a non-party must do so having regard to both substantive fairness to the parties and the appearance of fairness.”
51Contrary to the October 18 Endorsement and the relevant principles in Rikhye, when permitted to attend in person on Mr. Stewart’s examination for discovery (and attending by telephone at the cross-examination of Mr. Stewart on affidavits filed on these motions held on January 29, 2018), Mr. Susin:
i.) spoke on the record 62 times without being asked by counsel to do so and answered 30 questions on behalf of Mr. Stewart during his examination for discovery;
ii.) coached Mr. Stewart during his examination for discovery by nudging, elbowing and kicking him, coughing, whispering answers and referring him to notes;
iii.) during the two-hour cross-examination of Mr. Stewart, spoke on the record 162 times and gave 28 undertakings, 15 under advisements (including on questions with respect to Mr. Stewart’s knowledge of the Vexatious Litigant Order and related decisions) and 27 refusals on Mr. Stewart’s behalf;
iv.) interrupted examinations and continued his personal and professional attacks against Mr. Bala and Mr. Genova.
52Mr. Susin was given a chance by this Court and the parties to provide assistance to Mr. Stewart during examinations for discovery. He was also permitted to assist during Mr. Stewart’s cross-examination with respect to these motions. When given this chance, Mr. Susin blatantly disregarded the terms of the October 18 Endorsement, coached Mr. Stewart and disrupted examinations. Even without any consideration of Mr. Susin’s history as a vexatious litigant, I conclude that Mr. Susin’s conduct during examinations for discovery and cross-examinations provides a sufficient basis to exclude Mr. Susin from any further attendance on examinations for discovery and cross-examinations.
53Mr. Stewart submits that he does not want to lose Mr. Susin’s assistance and that if Mr. Susin is given another chance to attend on examinations for discovery, he will “control him”. To his credit, notwithstanding Mr. Susin’s ongoing personal and professional attacks, Mr. Genova advised the Court that as the Trudel Plaintiffs have an interest in Mr. Stewart’s examinations proceeding smoothly such that they are open to Mr. Susin’s continued attendance with assurances that he would limit his role to terms set out in the October 18 Endorsement. Mr. Genova had further discussions with Mr. Stewart and Mr. Bala in this regard.
54I am mindful of Mr. Stewart’s need for assistance generally and his plea for Mr. Susin’s assistance specifically, and the access to justice issues which this raises. These are significant, complex proceedings with serious disputed issues. None of the parties disagree with Mr. Stewart’s need for assistance or this characterization of these proceedings.
55However, I have no basis to conclude that, given another chance, Mr. Susin would comply with the terms of the October 18 Endorsement and restrain his own disruptive conduct, including witness coaching and answering questions. To allow Mr. Susin to attend again risks prejudice to the other parties including the efficiency of the examinations and the integrity and quality of the record. Based on the record before me, it is clear that Mr. Susin has no intention of complying with the October 18 Endorsement or acting in a role consistent with a moral supporter or law clerk as provided for in cases such as Rikhye and DeGrandis. I can only conclude that Mr. Susin would continue to conduct himself in a disruptive manner and improperly expand his role to one akin to a lawyer, which is prohibited by Rule 15.04 and the LSA.
56Further, as I concluded above, Mr. Susin is not Mr. Stewart’s only option. Although Mr. Stewart has a longstanding relationship with Mr. Susin, he has previously retained other counsel, continues to consult Mr. McAllister and acknowledges that he has made no recent efforts to retain counsel. In my view, Mr. Stewart’s preference for having Mr. Susin assist him and his distrust of lawyers cannot be allowed to unfairly affect the rights of the other parties when it results in Mr. Susin’s disruptions of examinations and compromising the record. A balance of all of the parties’ rights favours Mr. Susin’s exclusion from any further attendance at examinations for discovery and cross-examinations.
57Considering all of the relevant factors and circumstances, in my view, it is fair and just in the circumstances that the Exclusion Motion be granted and that Mr. Susin be barred and prohibited from any further attendance at examinations for discovery and cross-examinations in these actions.
The Attendance Motion
58The Trudel Plaintiffs seek an order prohibiting Mr. Stewart, who resides in British Columbia, from observing and/or listening in to the examinations for discovery of Mr. Mallory and Mr. Trudel, to be held in Ontario, by Skype, video conference or telephone. The Trudel Plaintiffs refused to consent to Mr. Stewart’s participation by telephone at the commencement of these discoveries on February 5, 2018. The Trudel Plaintiffs are concerned that Mr. Stewart may record these examinations and post them on his website which may damage their reputations which they have worked to rehabilitate since the conclusion of their criminal proceedings.
59The Trudel Plaintiffs cite an incident where Mr. Stewart secretly recorded a telephone call with a lawyer who refused to represent him and posted it on his website. The Trudel Plaintiffs also argue that there is no provision in the Rules to permit Mr. Stewart to participate by video conference, that he is not required to attend and if he wishes to observe, he can do so by attending in person in Ontario as he has previously where he will be unable to secretly record their examinations.
60The Trudel Plaintiffs cannot provide any evidence of instances in which Mr. Stewart has secretly recorded any court proceedings, including in these actions, or any allegations that he has done so. They also cannot provide any evidence of Mr. Stewart expressing an intention to do so or any reason why Mr. Stewart would.
61Mr. Stewart advises the Court that although he did record and post the telephone call with the lawyer, it was over a decade ago, for another purpose (to expose “corruption” in the legal profession) and he was never asked by the lawyer to remove it. He states that he has never recorded court proceedings, would not do this to the Trudel Plaintiffs and has no reason for doing so. He states that he gives the Court his word that he will not do so in these circumstances.
62In my view, there is no evidence before me to conclude that it is likely or reasonably possible that Mr. Stewart will use the indulgence to listen in or observe by video or telephone to secretly record the examinations of Mr. Mallory and Mr. Trudel. There is no evidence or allegations that he has ever done so in any proceedings, let alone these proceedings, nor has he given any indication that he intends to do so generally or to the Trudel Plaintiffs. Mr. Stewart has given this Court his word that he will not do so and the Court takes him at his word. If Mr. Stewart abuses this indulgence by recording the examinations or otherwise, the Trudel Plaintiffs can seek further directions and/or sanctions from a Master, or, if necessary, a Judge.
63Accordingly, I conclude that it is just and reasonable in the circumstances that Mr. Stewart be permitted to observe and/or listen in to the examinations for discovery of Mr. Mallory and Mr. Trudel by Skype, video conference or telephone.
The Examination Motion
64On the Examination Motion, Mr. Stewart seeks an order permitting him to conduct his examinations for discovery of Richard Riddell and Heather Lamarche on behalf of the Crown Defendants first, before Mr. Genova on behalf of the Trudel Plaintiffs.
65The Trudel Plaintiffs submit that they should go first because they have served their Notice of Examination and Mr. Stewart has not. Mr. Stewart submits that he should proceed first because he requested examination dates first. The Trudel Plaintiffs further submit that Mr. Genova, as a lawyer, unlike Mr. Stewart, has the legal skills and experience to properly conduct an examination and Mr. Stewart stated on cross-examination that he does not intend to review all of the relevant documents. The Trudel Plaintiffs’ concern is that if Mr. Stewart goes first, they may be precluded from asking further questions on areas which Mr. Stewart has already canvassed or be met with refusals.
66As a result of discussions between Mr. Genova and Mr. Stewart and their submissions, it appears that the parties may be able to resolve this issue consensually. The Trudel Plaintiffs do not want Mr. Stewart to be precluded from asking any questions he wishes and have an interest in his examination proceeding effectively. Mr. Genova submits that Mr. Stewart is free to ask any questions he does not ask. Mr. Stewart appears agreeable and states that he has a short list of questions.
67Therefore it is reasonable and appropriate in the circumstances that the Examination Motion be adjourned sine die pending further discussions. It may be brought back on or further directions may be sought if Mr. Genova and Mr. Stewart are unable to reach an agreement.
IV. Disposition
68Order to go as follows:
i.) the Amicus Motion is dismissed;
ii.) Mr. Susin is barred and prohibited from attending any further examinations for discovery and cross-examinations in these actions;
iii.) Mr. Stewart may attend on the examinations for discovery of Mr. Mallory and Mr. Trudel by Skype, videoconference or telephone.
69If the parties cannot agree on the costs of these motions, they may file written costs submissions not to exceed 3 pages (excluding costs outlines) on or before July 20, 2018.
Released: May 22, 2018
Master M.P. McGraw