COURT FILE NO.: DC-18-86-00
DATE: 2018 12 11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Lyudmila Chavdarova (a.k.a.) Mila Chavdarova, Appellant/Plaintiff
AND:
The Staffing Exchange Inc. (a.k.a.) TSE Canada Inc., Respondent/Defendant
BEFORE: Justice G.D. Lemon
COUNSEL: Lyudmila Chavdarova, In Person
Michael Polvere, Counsel for the Respondent/Defendant
HEARD: November 27, 2018
ENDORSEMENT
The Issue
[1] Ms. Chavdarova seeks an order for an extension of time to file her appeal to the Divisional Court.
[2] In response, TSE Canada asks that the motion be dismissed and seeks an order prohibiting Ms. Chavdarova from bringing any further motions or commencing any further actions against it without leave of the court. TSE Canada also asks for an order declaring Ms. Chavdarova to be a vexatious litigant.
Background
[3] As the issue in this matter starts with Ms. Chavdarova’s appeal to the Court of Appeal for Ontario, it is useful to understand the judgment that is under appeal. On May 9, 2018, Gray J. released a brief decision. The relevant portions are as follows:
This is the second time this matter has been remitted to me by the Court of Appeal.
On February 29, 2016, I heard motions for summary judgment brought by both parties. I determined that the relationship between Ms. Chavdarova and The Staffing Exchange Inc. was that of franchisor and franchisee, notwithstanding that The Staffing Exchange had attempted to frame the relationship as one of licensor and licensee. I held that Ms. Chavdarova had properly rescinded the franchise agreement because she had never been furnished with a disclosure document as required by s. 5 of the Arthur Wishart Act (Franchise Disclosure), 2000. I ordered that Ms. Chavdarova receive a refund of the amount she paid to The Staffing Exchange, namely, $33,335. I also ordered that since The Staffing Exchange had not disputed the amount she had claimed as damages, $99,835, I awarded that sum to her.
The Court of Appeal upheld my determination that the parties were in the relationship of franchisor and franchisee, but held that it was uncertain as to what material was relied on for Ms. Chavdarova’s damages, and thus remitted the issue of damages to me for determination.
On January 17, 2017, I directed Ms. Chavdarova to file an affidavit setting out, in detail, her damages. She filed an affidavit that contained no information as to her damages. I held a hearing on April 26, 2017, after which I dismissed her claim for damages.
By endorsement dated December 5, 2017, the Court of Appeal held that Ms. Chavdarova should have been given another opportunity to file evidence in support of her damages claim, and once again remitted the matter to me for determination.
I again directed Ms. Chavdarova to file an affidavit specifying what her damages are. I permitted the Staffing Exchange to file material in response. I ordered that at the hearing, cross-examination would take place on the affidavit material. At the hearing, cross-examination took place.
In result, I award Ms. Chavdarova total damages in the amount of $22,317.
[4] Ms. Chavdarova appealed this decision to the Court of Appeal for Ontario. On September 10, 2018, the Court of Appeal provided an appeal book endorsement which read:
- The order appealed from is for an amount less than $50,000. Such an appeal lies to the Divisional Court pursuant to s. 19(1)(a) of the Courts of Justice Act. It is the amount awarded and not the amount that was claimed that determines jurisdiction: see McGrath v. Woodrow (2001), 2001 24163 (ON CA), 52 OR (3d) 732 (C.A.) para. 16. As a result, the appeal is quashed. Costs to the respondent fixed in the amount of $2,500 inclusive of disbursements and applicable taxes.
[5] In submissions, Ms. Chavdarova explained that she was, and continues to be, uncertain as to the meaning of “the appeal is quashed.” Accordingly, on September 16, 2018, she brought a motion to the Court of Appeal for directions and an order “for transferring, filed and perfected at the Court of Appeal file C65403, to the Divisional Court, pursuant to Rule 110(1) of the Courts of Justice Act.”
[6] On October 3, 2018, Benotto J.A., clarified the meaning of ‘quashed.’ She said:
“This motion to transfer the file to Div. Ct. is an abuse of process. Two weeks ago a panel of this court quashed the appeal. Ms. Chavdarova requested that the panel transfer it to Div. Ct. and the court specifically refused to do so because she had been repeatedly offered by the respondent to transfer. Instead she insisted on arguing this jurisdictional issue before the panel. Under these circumstances, this motion is dismissed --- with costs of $1,000 all inclusive. M.L. Benotto.” [Emphasis in original.]
Ms. Chavdarova’s Motion
[7] Ms. Chavdarova relies upon Section 110(1) of the Courts of Justice Act. It reads:
Where a proceeding or a step in a proceeding is brought or taken before the wrong court, judge or officer, it may be transferred or adjourned to the proper court, judge or officer.
[8] However, the Court of Appeal and Justice Benotto have already dealt with this when clarifying what the word ‘quashed’ meant. The motion to order a transfer was dismissed. There is nothing to transfer to the Divisional Court. I have no authority to make an order contrary to the order of Benotto J.A. Ms. Chavdarova’s motion is dismissed.
TSE Canada’s Motion
[9] In Diler v. Heath, 2012 ONSC 3017, Broad J. summarized the law with respect to vexatious litigants. There he said:
- Section 140(1) of the Court of Justice Act provides as follows:
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, R.S.O. 1990, c. C.43, s. 140(1); 1996, c. 25, 2. 9(17).
- In the leading case of Lang Michener Lash Johnston v Fabian, 1987 172 (ON SC), 1987 CarswellOnt 378 [Ont. H.C.], Henry J. enunciated the applicable principles flowing from the jurisprudence on section 140 of the Court of Justice Act, at para. 20, as follows:
“From these decisions the following principles may be extracted:
(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.”
- There appears to be no threshold number of proceedings which must have been commenced in order to engage the application of the section, but rather the litigant must be shown to have “persistently” and “without reasonable grounds” instituted vexatious proceedings (plural) or conducted a proceeding (singular) in a vexatious manner.
[10] While I can understand the frustration of all of the parties to this litigation, I do not believe that Ms. Chavdarova has brought herself within the description of a vexatious litigant. On this record, I decline to make an order against her with respect to any further proceedings at this time. There is only one proceeding. She has appealed twice and been successful twice. Other than this present motion, she does not appear to have brought an action to determine an issue which has already been determined. Her confusion with respect to the appropriate appeal court is not unusual; many lawyers are often confused about the proper routes of appeal.
[11] Accordingly, TSE Canada’s motions are dismissed.
Costs
[12] Both sides have been partially successful. From what I can see in the materials, this is not an appropriate circumstance for costs. However, there may be aspects of the case of which I am not aware.
[13] If either party wishes to seek costs, their submissions shall be made within 30 days. Responding materials shall be filed within 15 days thereafter. Each submission shall be no more than three pages not including any Bills of Costs or Offers to Settle. Any submissions shall be forwarded to me at my office at the Superior Court Office, 74 Woolwich Street, Guelph, Ontario, N1H 3T9.
Lemon J.
Date: December 11, 2018
COURT FILE NO.: DC-18-86-00
DATE: 2018 12 11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LYUDMILA CHAVDAROVA (A.K.A.) MILA CHAVDAROVA
Appellant/Plaintiff
– and –
THE STAFFING EXCHANGE INC. (a.k.a.) TSE CANADA INC.
Respondent/Defendant
ENDORSEMENT
Lemon, J
Released: December 11, 2018