COURT FILE NO.: CV-18-00607747

DATE: 20190208

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: ADE OLUMIDE

Applicant

AND:

THOMPSON REUTERS CANADA AND iPOLITICS

Respondent

BEFORE: FAVREAU J.

HEARD: in writing

ENDORSEMENT

Introduction

[1] Ade Olumide was declared a vexatious litigant pursuant to an order of the Superior Court made by Dunphy J. on October 17, 2017, in accordance with section 140(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[2] Mr. Olumide has brought an application in writing, in which he appears to be seeking leave pursuant to section 140(3) of the Courts of Justice Act to raise a number of constitutional issues and to pursue a claim against the respondents, Thompson Reuters Canada and iPolitics.

Test under section 140(3) of the Courts of Justice Act

[3] Section 140(1) of the Courts of Justice Act gives a judge of the Superior Court the power to prevent a litigant from continuing with existing litigation or commencing new litigation without leave of the Court, where the Court makes a finding that the person has instituted vexatious litigation or has conducted litigation in a vexatious manner.

[4] Subsections 140(3) and (4) of the Courts of Justice Act set out the powers of the Court where a person who has been declared a vexatious litigant seeks leave to continue a proceeding or commence a new proceeding:

(3) Where a person against whom an order under subsection (1) has been made seeks leave to institute or continue a proceeding, the person shall do so by way of an application in the Superior Court of Justice.

(4) Where an application for leave is made under subsection (3),

(a) leave shall be granted only if the court is satisfied that the proceeding sought to be instituted or continued is not an abuse of process and that there are reasonable grounds for the proceeding…

[5] This Court has described the test for obtaining leave to proceed under section 140(3) of the Courts of Justice Act in Lindhorst v. Centennial College, 2016 ONSC 2678 (Sup. Ct.), at para. 4 as follows:

Pursuant to s. 140(4)(a) of the Act, in order to be granted leave the onus is on the applicant to demonstrate that the proceeding sought to be instituted is not an abuse of process and that there are reasonable grounds for the proceeding. The test is not whether the applicant has conceptually an arguable case. The applicant must proffer evidence and not mere allegations to support the proposition that there is an evidentiary basis for the relief claimed in the proposed proceeding. (See: Deep v. Canada (Revenue Agency), [2011] O.J. No. 4256 (S.C.J.) at paras. 7-8.)

Mr. Olumide’s history as a vexatious litigant

[6] In Lindhorst v. Centennial College, at para. 6, the Court held that the history of an applicant who has been declared a vexatious litigant is relevant to the determination of whether leave to should be granted to institute a new proceeding.

[7] As mentioned above, Mr. Olumide was declared a vexatious litigant on October 17, 2016 by this Court. In addition, I note that the Federal Court made a similar finding in Olumide v. Canada, 2016 FC 1106, 2016 F.C. 1106, where Martineau J., at paras. 9 and 10, made the following findings:

9 I am satisfied that Mr. Olumide bears all the hallmarks of a vexatious litigant. I wholly endorse the arguments made by the defendants in their submissions to declare Mr. Olumide vexatious pursuant to section 40 of the Act (see paragraphs 77 to 109 of the written representations of Her Majesty the Queen in Right of Canada and Attorney General of Canada dated September 13, 2016).

10 In particular, I find that:

(a) Mr. Olumide has been admonished by various courts for engaging in vexatious and abusive behaviour;

(b) Mr. Olumide institutes frivolous proceedings (including motions, applications, actions and appeals);

(c) Mr. Olumide makes scandalous and unsupported allegations against opposing parties of the Court;

(d) Mr. Olumide relitigates issues which have been already been decided against him;

(e) Mr. Olumide unsuccessfully appeals interlocutory and final decisions as a matter of course;

(f) Mr. Olumide ignores court orders and court rules; and

(g) Mr. Olumide refuses to pay outstanding costs awards against him.

[8] The Federal Court of Appeal also made a finding that Mr. Olumide is a vexatious litigant in Canada v. Olumide, 2017 FCA 42. In the decision, Stratas J.A. made the following findings at paras. 41 and 42:

42 On the merits of the application, the starting point is that both the Federal Court and the Ontario Superior Court of Justice have declared the applicant to be a vexatious litigant: Olumide v. Canada, 2016 FC 1106; order of the Ontario Superior Court of Justice, dated October 17, 2016. In these circumstances, the findings of these Courts can be considered and can be given much weight: C.U.P.E., above. Further, the record shows vexatious behaviour on the part of the respondent in other courts that mirrors his behaviour in this Court: see, most recently, the summary of conduct in Olumide v. Her Majesty the Queen in Right of Ontario, 2017 ONSC 1201. In response, the respondent has not offered any evidence.

43 The granting of this application is strongly supported by the purposes of section 40. In roughly three years, the respondent has brought at least 47 matters in various courts. In this Court, he has brought 18, most of which have been dismissed summarily. As for those not dismissed, the pleadings, motions and affidavits contain many scandalous and irrelevant allegations and it is not possible to see any merit in them. The respondent flouts directions and orders of this Court.

Application of the test for leave to this case

[9] In this case, Mr. Olumide has filed a two volume record in support of his application. Reading the materials very generously, it appears that Mr. Olumide alleges that the respondents, Thompson Reuters Canada and iPolitics, defamed him in articles they published reporting on court decisions in which Mr. Olumide was declared a vexatious litigant.

[10] The Notice of Application also makes reference to proposed constitutional challenges pursuant to sections 7, 9, 10, 12 and 15 of the Canadian Charter of Rights and Freedoms, without specifying how these provisions are engaged by Mr. Olumide's proposed claim against the respondents.

[11] While the materials make reference to a proposed claim against the respondents and various Charter challenges, the vast majority of Mr. Olumide's materials focus a previous ruling made by Hackland J. staying these proceedings on the basis that Mr. Olumide failed to obtain leave of the court before instituting the proceedings. Mr. Olumide argues that Hackland J. ought to have recused himself from making that decision.

[12] As mentioned above, on an application made pursuant to section 140(3) of the Courts of Justice Act, the applicant has the onus of proving that the proposed proceeding is not an abuse of process and that there are reasonable grounds for the proposed proceeding.

[13] Having reviewed the materials put forward by Mr. Olumide, I find that he has not met his onus in a number of respects.

[14] First, the application fails to coherently set out the nature of the claim Mr. Olimude proposes to bring against the respondents, and the grounds that support such a claim. Besides lacking any cohesiveness, the claim against the proposed respondents is not supported by any evidence, which, as reviewed above, is a requirement established by the case law.

[15] Second, while Mr. Olumide purports to seek permission to bring a constitutional challenge on the basis of a number of Charter provisions, his materials do not articulate how his proposed claim engages Charter rights, nor does he provide any evidentiary basis in support of these alleged violations.

[16] Third, while ostensibly seeking leave to proceed with a claim against the respondents, the focus of Mr. Olumide's application is his disagreement with a ruling previously made by Hackland J. staying this proceeding on the basis that Mr. Olumide had failed to obtain leave of the Court pursuant to section 140(3) of the Courts of Justice Act before it was instituted. As part of his decision, Hackland J. refused to recuse himself.

[17] The materials on the application before me include a transcript from the hearing before Hackland J. After hearing Mr. Olumide's request that he recuse himself, Hackland J. made the following oral ruling:

THE COURT: I am not planning on dealing with your application on any substantive basis here, sir, so I will certainly recuse myself or avoid dealing with your case on the merits, if and when the matter becomes property before the court. Today we have a procedural matter. As you know, you commenced a lawsuit against certain parties, and doing so contravenes the order of Mr. Justice Dunphy of the Superior Court, given in Toronto, on October 17th, 2016.

ADE ALUMIDE: With respect, thank you.

THE COURT: Would you - for the record, Mr. Olumide has walked out of the court. I will make an endorsement staying these proceedings and prohibiting Mr. Olumide from pursuing any further court proceedings in the Superior Court without having first made an application for leave to proceed under section 140(4) of the Courts of Justice Act. That is what needed to have occurred in this case, and has not done, so the - not been done, therefore, the entire proceedings will be permanently stayed. Mr. Olumide can bring an application under that section of the Courts of Justice Act in due course should he have grounds to do so…

[18] An Order was subsequently taken out as follows:

ON READING the Application Record, and upon hearing the plaintiff's recusal request, which was declined, and upon it appearing that the plaintiff has been declared a vexatious litigant pursuant to section 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43 by order of Justice Dunphy dated October 17, 2016 and no leave to proceed under section 140(3) of the said Act having been sought;

THIS COURT ORDER that this proceeding is permanently stayed.

[19] On this application, Mr. Olumide asks that Hackland J.'s order be set aside and that a finding be made that he ought to have recused himself. In support of this request, Mr. Olumide makes extensive and very serious allegations of misconduct against the motion judge. On their face, these allegations are without any foundation, and they are clearly scandalous and vexatious.

[20] In any event, there is absolutely no merit to Mr. Olumide's request that the Order be set aside. This Court has no jurisdiction to set aside the order of another Superior Court judge. In addition, I agree with the disposition of the matter before Hackland J. and, more significantly, his decision did not affect Mr. Olumide's rights or ability to bring an application to this Court. It is clear from the ruling that Hackland J. did not decide the merits of Mr. Olumide's proposed proceeding against the respondents. Rather, he stayed it because Mr. Olumide had failed to obtain leave pursuant to section 140(3) of the Courts of Justice Act. It was clear from the ruling that it was open to Mr. Olumide to bring such an application.

[21] Ultimately, rather than bringing a properly constituted application in which he sets out a coherent cause of action against the respondents and provides some evidence in support of his claim, Mr. Olumide has chosen to focus his efforts on Hackland J.'s decision. In doing so, he has replicated the conduct that has led to the findings made by this Court and two levels of the Federal Court that he is a vexatious litigant.

Conclusion

[22] Accordingly, I find that the applicant has failed to demonstrate that his proposed action against the respondents is not an abuse of process and that there are reasonable grounds for allowing it to proceed. The application is therefore dismissed.

[23] I remind Mr. Olumide that, pursuant to s. 140(4)(e) of the Courts of Justice Act, no appeal lies from this decision.

FAVREAU J.

RELEASED: February 8, 2019