COURT FILE NO.: 18-78841

DATE: 20190208

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: GRACE JOUBARNE, Applicant

AND

GARY KELLAM, JUDITH SPENCE, NATIONAL GUILD OF HYPNOTISTS OTTAWA-OUTAOUAIS CHAPTER, NATIONAL GUILD OF HYPNOTISTS INC, (NGH), Respondents

BEFORE: Mr. Justice Robert N. Beaudoin

HEARD: By Requisition

ENDORSEMENT

Background

1This matter was referred to me by the Registrar pursuant to Rule 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 upon receipt of a requisition by counsel for the respondent, Judy Spence (“Spence”) who seeks an order dismissing this application as it appears on its face to be frivolous, vexatious, or otherwise an abuse of the process of the Court. The applicant (“Joubarne”) was copied with that request.

2I have reviewed the ten volume application Record, Factum, and Book of Authorities. The application has been given a return date of May 2, 2019. In her notice of application, Joubarne makes seeks:

1. An order declaring the decision of Deputy Judge Leclaire in the Small Claims Court action #11-SC-116722-0000, dated February 1, 2017, a nullity.

2. An order setting aside the cost award dated April 6, 2018 of Deputy Judge Leclaire in Small Claims Court action #11-SC-116722-0000.

3. An order staying the Motion for Leave to Appeal from the cost award of Deputy Judge Leclaire filed April 6, 2018 in the Divisional Court that has not been decided.

4. An order setting aside the endorsement of Divisional Court Judge Bell dated June 27, 2018, dismissing Joubarne’s motion for an extension of time (Divisional Court file no. 18-76208).

5. An order setting aside the order of Deputy Registrar Sandra Theroulde of the Court of Appeal of Ontario dated October 23, 2018, in the matter of the dismissal for delay (Motion file # M49578).

6. An order permitting the plaintiff to amend her plaintiff’s claim to plead (a) damages of $300,000 and all just and equitable remedies this Court deems fair in the circumstances, and (b) details of false affidavits of Dwight Damon and Scot Giles.

7. An order that a new trial be heard by this Court on the application record that includes the exhibits and transcripts of the Small Claims court trial.

8. All other remedies and directions this court may deem fair, just and equitable in the circumstances.

9. No costs to be awarded against the applicant in any event.

3The grounds for the application are set out as follows:

1. Deputy Judge R. Leclaire presiding over the trial in Small Claims Court action 11-SC-116722-0000 in 2014, 2015 and 2016 lent his approval to fraud on the court, witness tampering, insurance receipting fraud, repeated misrepresentations in testimony and refusals to admit facts, and the illegal use of the title Doctor, rendering his decision a nullity.

2. Deputy Judge Leclaire erred in going outside the pleadings to make findings on irrelevant facts, while failing to consider the actual pleadings and settle law on defamation before him. He also failed to give a reasoned decision based on the evidence and law before him, all of which should render his decision a nullity.

3. Deputy Judge Leclaire erred in failing to consider the material evidence of malicious defamation by the respondents/defendants.

4. Divisional Court Justice R. Ryan Bell dismissed Plaintiff’s Joubarne’s motion for an extension of time to file her notice of appeal (as of right) from the judgment of Deputy Judge Leclaire without doing a contextual analysis, without considering the evidence of fraud on the court and errors of the Deputy Judge that were brought to her attention and without due regard to settled law on ensuring access to justice is not barred by procedure.

5. Divisional Court Justice Bell also erred in holding that Joubarne did not have a bona fides intention of appealing because Joubarne did not appeal the Deputy Judge’s decision before the decision was released to the parties.

6. Deputy Judge Leclaire erred in finding that the NGH and the Chapter had not been served with the Plaintiff’s Claim, and Justice R. Ryan Bell improperly removed corporate defendant NATIONAL GUILD OF HIPNOTISTS INC, (NGH) from the action, despite filed affidavits of service of process servers and requests to the registrar noting the defendants in default that were on the court file.

7. There is new evidence that shows that the corporate defendant, NATIONAL GUILD OF HYPNOTISTS INC. (NGH) filed a knowingly false affidavit during trial to have its co-defendant, NATIONAL GUILD OF HYPNOTISTS OTTAWA-OUTAOUAIS CHAPTER (Chapter) released from the action.

8. The applicant has been obstructed from accessing a fair and principled decision on the merits of the defamation action against the defendants by the discord between the Ottawa Courthouse and the Court of Appeal of Ontario Registrar’s office, and by contradictions among various staff of the Court of Appeal of Ontario.

4From my review of the materials before me and from both of Jorbane’s affidavits, each sworn December 3, 2018, I note the following: Jourbane commenced an action in Small Claims Court in Ottawa, on April 8, 2011 alleging that the individual respondents Spence and Gary Kellam (“Kellam) had defamed her and had intentionally interfered with her business. The matter proceeded to trial before Deputy Judge Leclaire. That trial lasted 7 days and was completed on June 15, 2016. All parties were represented except for the National Guild of Hypnotists Ottawa-Outaouais Chapter and the National Guild of Hypnotists Inc. (NGH). Deputy Judge Leclaire found that the National Guild of Hypnotists Ottawa-Outaouais Chapter was an organization without legal status and that (NGH), based in Merrimack, New Hampshire, had not been served.

5Deputy Judge Leclaire reserved his decision which he released on February 01, 2017. (11-SC-116722) He dismissed all of Joubarne’s claims. At para. 48 of his decision, he concluded:

In any event, I am of the view that this case was never about Miss Joubarne’s damages. It was about the importance she attached to her view about the difference between hypnotist and hypnotherapist, insurance receipting with the hypnotist community, and creating trouble for 2 individual defendants and the Ottawa Chapter of the NGH.

6Deputy Judge Leclaire released his costs decision on April 6, 2018. He found that Joubarne’s conduct was unreasonable meriting an award in excess of the usual 15% costs award. He ordered Joubarne to pay Spence her costs in the amount of $7500 plus disbursements of $1594.68, and to pay Kellam his costs in the amount of $7500 plus disbursements of $951.86.

7Joubarne then brought two motions in Divisional Court which were heard in writing by Justice R. Ryan Bell. Joubarne sought to appeal the judgment of Deputy Judge Leclaire and to extend the time to file her appeal. By this time, Joubarne was self-represented. She also sought leave to appeal the costs order made by the Deputy Judge. Ryan Bell, J. limited her endorsement to the motion to extend time.¹ Justice Ryan Bell referred to the well-settled test to extend the time at para. 7 of her decision. She was unable to conclude that Joubarne had formed a bona fide intention to appeal within the relevant time period. In considering the prejudice to the respondents and the merits of the proposed appeal, Justice Ryan Bell concluded at para. 18:

Ms. Jourbane’s motion materials confirm the view you expressed by the Deputy Judge that this case was never about Ms. Jourbane’s damages; rather it was about her views as to the differences between hypnotist and hypnotherapist and other issues in the hypnotist community. I agree with the respondent’s characterization that the proposed appeal amounts to a collateral attack on the Deputy Judge’s decision. There is nothing in the material before me which undermines the findings of the Deputy Judge. I conclude that the proposed appeal does not have merit.

8Joubarne then attempted to appeal Justice Ryan Bell’s decision to the Court of Appeal. Once again, she sought a motion to extend the time for the hearing of that Appeal and she engaged in lengthy communications with the Registry staff in the Court of Appeal with respect to the proper procedure. That motion was heard in writing by Justice Trotter on August 22, 2018. His endorsement reads as follows:

I accept, for the purposes of this decision, that the applicant had intention to challenge the decision of Ryan Bell J within the relevant time period, the length of delay has been short, and the explanation for the delay has been short. However, I’m not satisfied that the defendants would not be prejudiced by permitting this leave application continue given that it is completely devoid of merit: see Enbridge Gas Distribution v Froese, 2013 ONCA 131 at para. 15 and 1250264 Ontario Inc. v. Pet Valu Canada, 2015 ONCA 7, 2015 ONCA, at para. 7.

In my view, Ryan Bell J. clearly recognized the applicable legal principles in granting extensions of time. She applied the principles properly, finding that there was absolutely no merit in the applicant’s very late attempts to appeal.

Accordingly, while the applicant cannot be blamed for the delay in attempting to collect place the appeal before this Court, the meritless nature of the proposed appeal compels me to refuse the relief requested. The application is refused. I make no order as to costs.

9Joubarne then attempted to vary Justice Trotter’s decision to a three judge panel of the Court of Appeal. Thereafter, there were numerous exchanges between Joubarne and Court of Appeal Registry Staff. Joubarne admits that she received a Notice of Intention to Dismiss from the Office of the Registrar, but claims that it had nothing to do with her since she had never been “assigned to Motion number referred to.” On November 5^th, Joubarne’s motion was dismissed for delay.

10Joubarne concludes her second affidavit as follows:

51. I have prepared, served and filed some 7 Notices of Motions in order to try to access a single file number change on the original Notice of Appeal from the decision of Deputy Judge Leclaire that I filed erroneously in the Ottawa Courthouse, at the instruction of Ottawa registry staff. It is clear that I will be hampered from ever refiling my Notice of Leave to Appeal from the endorsement of Justice Bell denying me an extension of time required to no fault of my own.

52. I have learned that when fraud on the court is involved in a decision, that the resolution is not appeals, but an action before Superior Court of Justice and I am therefore bringing this application in hopes that the Superior Court will administer justice and declare Deputy Judge Leclaire’s (and Justice Bell’s) decisions nullities and choose to adjudicate my plaintiff’s claim on the application record.

53. I swear this affidavit in support of my application for remedy and direction from the Superior Court of Justice and for no improper purpose.

The Law

The Law

11Rule 2.1.01(1) applies to “proceedings”, which, by definition, includes an action or an application. The Ontario Court of Appeal has reviewed the application of Rule 2.1 in Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733 at paras. 7, 8 and 9:

7 Rule 2.1 is a relatively new rule that came into force on July 1, 2014. The motion judge has decided a number of cases which have helped to delineate both the procedure and the test to be applied under the rule: see Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6100, 37 C.L.R. (4th) 1 (“Gao No. 1”); Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497, 37 C.L.R. (4th) 7 (“Gao No. 2”); Raji v. Border Ladner Gervais LLP, 2015 ONSC 801; and, Covenoho v. Ceridian Canada, 2015 ONSC 2468.

8 Under this line of authority, the court has recognized that the rule should be interpreted and applied robustly so that a motion judge can effectively exercise his or her gatekeeping function to weed out litigation that is clearly frivolous, vexatious, or an abuse of process. However, the use of the rule should be limited to the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading and there is a basis in the pleadings to support the resort to the attenuated process.

9 We fully endorse that case law and the guidance that has been provided by the motion judge in the interpretation and operation of r. 2.1. This approach is summarized in Raji, at paras. 8-9, as follows:

[R]ule 2.1 is not for close calls. Its availability is predicated on the abusive nature of the proceeding being apparent on the face of the pleadings themselves. No evidence is submitted on the motion….

[T]here are two conditions generally required for rule 2.1 to be applied. First, the frivolous, vexatious, or abusive nature of the proceeding should be apparent on the face of the pleading as required by the rule. Second, there should generally be a basis in the pleadings to support the resort to the attenuated process of rule 2.1…. This second requirement is not in the rule and is not a fixed requirement. It strikes me as a guideline that reminds the court that there are other rules available for the same subject matter and that resort to the attenuated process in rule 2.1 should be justified in each case.

See also Gao (No. 2), at paras. 11-18; and Covenoho, at paras. 6-7. We also recognize that the case law will develop as the rule becomes more widely utilized.

Analysis and Conclusion

Analysis and Conclusion

12On its face, rule 14.05 is not available to provide the relief claimed in this application. None of the provisions of Rule 14.0(3) are applicable. In her factum, Joubarne claims a breach of her Charter Rights of freedom of expression and relies on rule 14.05(3) (g.1) but this is not asserted anywhere in the application itself.

13Joubarne alleges that there is new evidence that shows that Dwight Damon, the President of the National Guild of Hypnotists Inc. (NGH) knowingly filed a false affidavit during trial about the relationship between NGH and the NGH Ottawa-Outaouais. The relationship between these two parties is irrelevant. Deputy Judge Leclaire concluded that NGH had not been served and that NGH Ottawa-Outaouais had no legal status.

14Joubarne is seeking to re-litigate issues that have already been decided by Deputy Judge Leclaire. She specifically seeks an order that this Court adjudicate the claims on the basis of the transcripts, the exhibits and compendium of the trial.

15Joubarne attempted to appeal the Small Claim Court Judge’s decision to the Divisional Court and sought an extension of time in order to do so. In deciding the leave issue, Justice Ryan Bell determined that the appeal had no merit. Joubarne then attempted to appeal that decision to the Court of Appeal and sought an extension of time to do so. In deciding that issue, Justice Trotter, once again, determined that the appeal was without merit. Her attempt to have that decision appealed to a three judge panel was dismissed on notice to her.

16Joubarne’s claims against these respondents have been finally decided. She has exhausted all available remedies. She cannot now seek to re-litigate these claims through this application. The principles of issue estoppel and res judicata apply. This application is nothing more than a collateral attack on the decisions of Justice Ryan Bell and Justice Trotter. This application is frivolous, vexatious and an abuse of the court’s process.

17This application is dismissed without seeking written submissions from the applicant. There is nothing that this applicant can add beyond her current ten volume application, factum and book of authorities that could satisfy the court that her application should proceed.

18This endorsement is to be sent to Ms. Joubarne and counsel for the respondents by regular mail under subrule 2.1.01(5) and by email to those for whom the court has email addresses. The respondent Spence shall submit a draft order to the registrar for signing and entry without the necessity to seek approval as to form and content by the applicant. The respondent Spence shall then serve a copy of the entered order on the applicant and file proof of service with the registrar.

Footnotes

1. 12018 ONSC 3997