Court File and Parties

Court File No.: 708/12 Date: 2018/08/17 Ontario Superior Court of Justice – Family Court

Between: Beverly Anne McKee, Applicant And: James Alexander McKee, Respondent

Counsel: Self-represented Applicant Self-Represented Respondent

Heard: August 16, 2017

Reasons for Decision on Motion to Declare Applicant a Vexatious Litigant

Before: L. Sheard J.

[1] The respondent, James Alexander McKee, brought a motion to have the applicant, Beverly Anne McKee, declared a vexatious litigant and that she be barred, directly or indirectly, from initiating or continuing any action, application, motion and/or proceeding without leave of a judge of the Ontario Superior Court of Justice as against him or, in the words suggested by duty counsel, that Ms. McKee be prevented from bringing “anything” to court without leave of the court.

[2] Ms. McKee opposed the order sought.

[3] For the reasons set out below, I am granting Mr. McKee’s motion.

Background

[4] The McKees were married in 1983 and separated in 2012. On October 16, 2012 Ms. McKee brought an application seeking the relief usual to a marriage breakdown: support and division of assets. Following a 14-day trial, Justice MacPherson issued a 29-page judgment, adjudicating upon all issues except for costs, which were decided in her endorsement of March 4, 2016 (the “MacPherson Judgment”).

[5] In August 2016 Mr. McKee commenced a motion to change (the “MTC”) [1] by which he sought an order terminating the spousal support ordered by the MacPherson Judgment. He also brought a divorce application. Ms. McKee’s answer in the divorce application was struck and the divorce was granted by way of uncontested hearing on May 2, 2017.

[6] In August 2017 Ms. McKee brought an application for a restraining order [2] but the endorsement record shows that Ms. McKee failed to attend both the First Appearance Court on August 9, 2017 and the case conference of September 20, 2017. She did attend before Justice Pazaratz on November 7, 2017, the date scheduled for the hearing of her application for a restraining order.

[7] By handwritten endorsement, Justice Pazaratz made a final order on November 7, 2017 finally disposing of Ms. McKee’s application (the “Pazaratz Order”). Among other things, the Pazaratz Order contained a mutual restraining order that prohibited either party from contacting or speaking the other person’s name except as required by the legal proceedings.

[8] In his endorsement Justice Pazaratz noted that, despite their ages - Mr. McKee was then 77 years old and Ms. McKee was 69 - neither was behaving with “the maturity or dignity that one would expect given the stage of their lives, and all of their previous positive accomplishments.” Beginning at paragraph seven of his endorsement, Justice Pazaratz stated that it was clear to him:

(7) …that these parties have unresolved animosity toward one another and bitterness about previous court determinations, and these destructive and unchecked emotions are fueling this endless litigation.

(8) As a court system we have to ensure access to justice for everyone, but that also entails an obligation to ensure that court resources are allocated appropriately, I have tried to explain to both of these parties that taxpayers do not have a bottomless pit of money to pay for their incessant legal feuding, and that after 9 volumes and 47 court attendances these parties have pretty much exhausted our tolerance from any further wasteful court proceedings.

[9] At the trial scheduling conference held on November 14, 2017, Mr. McKee advised that he wished to withdraw his MTC, and he was granted leave to do so. On that date, only seven days after the trial and the issuance of the Pazaratz Order, Ms. McKee advised that she wished to pursue her motion to set aside the Pazaratz Order; she wanted only Mr. McKee to be subject to a restraining order.

[10] On November 22, 2017 Ms. McKee issued a new application (Court File No. 708/12, ext. 0009) in which she sought a restraining order against Mr. McKee. Under the heading “other claims”, Ms. McKee wrote: “Different laws for Al [Mr. McKee] filing court documents and Beverly [Ms. McKee] filing court documents.”

[11] Ms. McKee then brought a motion to set aside the Pazaratz Order returnable on November 30, 2017. Justice Lococo heard the motion and held that he did not have jurisdiction to set aside the Pazaratz Order and that, if Ms. McKee sought to challenge the Pazaratz Order, the appropriate course of action would be an appeal.

[12] On January 10, 2018 the parties were again in court on the first return date of Ms. McKee’s application. A case conference was scheduled for February 20, 2018.

[13] Despite that he had withdrawn his MTC, the trial was set for February 7, 2018. I was the trial judge on that date. Mr. McKee confirmed that he had withdrawn his MTC on November 14, 2017 and both Mr. McKee and Ms. McKee confirmed that there was no matter before the Court that required a trial. In my endorsement, I noted that the matter was complete; that there would be no adjournment; and that no order would be made to vary or change the MacPherson Judgment.

[14] When she was before me on February 7, 2018, Ms. McKee expressed her unhappiness with the MacPherson Judgment. Ms. McKee was told that this Court did not have the power to overturn a judgment of a judge of the same court and that her recourse, if any, was to appeal the MacPherson Judgment. I suggested to Ms. McKee that she seek legal advice to inform herself of her legal options.

[15] In the course of the parties’ appearance before me on February 7, 2018 Mr. McKee advised of Ms. McKee’s new application (708/12, ext. 0009) to set aside the Pazaratz Order (Vol. 10, Tab 1). Mr. McKee stated that he had been served with a case conference notice in that application that required him to attend court on February 20, 2018.

[16] The endorsement record shows that on the case conference he conducted on February 20, 2018, Justice Lococo referred to and to a large extent repeated what he had said in his endorsement when he dismissed Ms. McKee’s motion to set aside the Pazaratz Order, namely that a judge of the Ontario Superior Court of Justice does not have jurisdiction to set aside an order made by another judge of the same court. He stated further that, as Ms. McKee’s motion seeking that same relief had been dismissed on November 30, 2017, Ms. McKee’s new application could be seen as an abuse of process.

[17] With Ms. McKee’s consent, at the case conference of February 20, 2018, Lococo J. made a final order dismissing Ms. McKee’s application.

[18] Despite the consent dismissal of her application and having been told on numerous occasions that this court could not grant her the relief she was seeking, on May 8, 2018 Ms. McKee filed a motion seeking to revisit the MacPherson Judgment. Her notice of motion reads, in part, as follows:

With settlement the Respondent received more than 100% and the Applicant received less than 0%. The Applicant is asking for a fair and reasonable settlement of her thirty year marriage.

[19] In her supporting affidavit sworn May 8, 2018, Ms. McKee set out her complaints about the MacPherson Judgment. Among other things, at paragraph nine of her affidavit, Ms. McKee describes it as a “miscarriage of justice”. In the middle of that paragraph at page five of her affidavit, Ms. McKee states: “In February, 2018 I asked Justice Lococo to end 708/12 [ext. 0009] because I was not going to get justice. Now I feel this is not fair and it is not right….”

[20] On May 14, 2018 Ms. McKee filed three new affidavits asking (again) for the Pazaratz Order to be “rescinded” and laying out the wrongs she perceived to have suffered at the hands of the judges before whom she had appeared.

[21] Mr. McKee delivered a responding affidavit sworn May 16, 2018 asking, among other things, that Ms. McKee’s motion be dismissed.

[22] Ms. McKee’s motion was before MacPherson J. on May 17, 2018 and was adjourned on consent to August 16, 2018. The endorsement of Justice MacPherson goes on to read: “Respondent will be bringing a motion to have the applicant declared a vexatious litigant, (to be returnable August 16.18 @ 10 a.m.). The R. motion must be served on or before July 19, 2018 to permit sufficient time for A. to respond.”

[23] The parties complied with the timetable ordered by MacPherson J.

[24] Mr. McKee’s motion came before Justice J.W. Scott on June 28, 2018 who adjourned it to August 16, 2018 and also ordered that Mr. McKee’s motion to have Ms. McKee be declared a vexatious litigant (Vol. 10, Tab 14) be dealt with prior to Ms. McKee’s motion (Vol. 10, Tab 7).

[25] Mr. McKee’s motion was before me on August 16, 2018. Ms. McKee did not wish to proceed with her motion on that date. As Mr. McKee had brought his motion pursuant to the orders and direction of Justices MacPherson and Scott, I treated it as an application brought under s. 140 of the Courts of Justice Act, R.S.O. 1990, Chap. C. 43 (the “CJA”).

Analysis: The Vexatious Litigant

[26] The principles of a vexatious litigant as enumerated in Lang Michener Lash Johnston v. Fabian, 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.

[27] Without question, the characteristics found at (a) to (e) above apply here. The history of the proceedings summarized above clearly shows that Ms. McKee has brought numerous proceedings to set aside or change the final orders of MacPherson J. and Pazaratz J. She has persisted in repeatedly bringing motions in the face of being told and understanding that the relief she seeks cannot be granted and could be seen as an an abuse of process.

[28] It is obvious that Ms. McKee’s current motion cannot succeed and it is difficult to see the purpose of these repeated court motions and applications as anything other than the harassment of Mr. McKee. He has advised the court repeatedly that he is in ill health. On the hearing before me today, Mr. McKee advised that he suffers from headaches and vision problems and underwent an MRI last weekend. He also pointed out that he is 79 years old and that this litigation is affecting his health. Ironically, Ms. McKee has also repeatedly told the Court that she is in poor health and that the litigation is adversely affecting her health.

[29] As can clearly be seen from the materials filed by Ms. McKee, the grounds and issues she raises have been repeated and rolled forward into subsequent motions. While there is no evidence that she has pursued a claim against her trial counsel (she has been self-represented thereafter), Ms. McKee’s affidavit materials are certainly replete with criticisms of the judges who have adjudicated her claims.

[30] Looking at the whole history of this matter following the MacPherson Judgment, none of the court proceedings (including Mr. McKee’s MTC) appear to have been based on a good cause of action.

[31] Courts have held that the above principles are not exhaustive and that the applicant 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).

[32] Based on the history summarized above, I conclude that the power to declare Ms. McKee a vexatious litigant ought to be exercised here. No possible good can be had from the litigation that Ms. McKee repeatedly brings and which are inevitably dismissed: her actions are vexatious.

Disposition: Ms. McKee is a Vexatious Litigant

[33] For the above reasons, I conclude that Mr. McKee has established that sufficient characteristics of a vexatious litigant exist here. I echo words of the Ontario Court of Appeal in Susin v. Susin, 2009 ONCA 231 that Ms. McKee’s conduct is “indicative of persistent and unwarranted pursuit of legal proceedings that are both meritless and frivolous” and that she ought no longer to be permitted unrestrained access to the courts of Ontario.

[34] Pursuant to s. 140 of the CJA, I declare Beverly Anne McKee to be a vexatious litigant and order that, except by leave of a judge of the Superior Court of Justice, no further proceeding shall be instituted by Beverly Anne McKee in any court as against James Alexander McKee and no proceeding previously instituted by Beverly Anne McKee against James Alexander McKee shall be continued. For certainty, this order applies to Ms. McKee’s pending motion found at Vol. 10, Tab 7, which shall not proceed except if leave to do so is granted by a judge of the Superior Court of Justice.

Costs

[35] Ordinarily, the successful party is entitled to seek costs. However, Mr. McKee advised the Court that, should he be successful on his motion, he did not wish to seek costs. Accordingly, there shall be no costs of this motion.

L. Sheard J. Released : August 17, 2018

[1] Court File No. 708/12, ext.0006, the sixth proceeding between the parties in this court [2] Court File No. 708/12, ext.0008, the eighth proceeding between the parties in this court