Court File and Parties

Court File No.: CV-18-5326 Date: 2020-02-19 Ontario Superior Court of Justice

Between: THE REGIONAL MUNICIPALITY OF PEEL POLICE SERVICES BOARD, Applicant Counsel: Rafal Szymanski, for the applicant

- and -

DARREN JOHN, Respondent Counsel: In person

Vexatious Litigant Application

Reasons for Decision

Daley, RSJ.

Introduction

[1] Darren John is no stranger to the court.

[2] For many years he has waged a relentless campaign of litigation against an ever-expanding list of defendants.

[3] The applicant, The Regional Municipality of Peel Police Services Board (the “Board”), applies for an order declaring the applicant, Darren John, a vexatious litigant and for ancillary relief following that declaration in accordance with s. 140(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[4] Upon the return of this application before the court, the respondent brought an oral motion without notice at the outset seeking an order that I recuse myself from hearing this application. As the respondent had not filed any written material in respect of this recusal motion, he provided viva voce testimony with respect to the motion. He also made submissions as to why his motion should be granted.

[5] The respondent’s recusal motion was dismissed with reasons to follow, which are being released concurrently and separately from the within reasons.

[6] It is notable that the respondent has in several cases accused judges of bias and moved for their recusal, which motions were dismissed: see John v. Peel Police, 2017 ONSC 4059; John v. Samuels, 2018 ONSC 5651; John v. Dallas, 2019 ONSC 5084.

[7] In the course of the hearing of the Board’s application, the respondent was extended every opportunity to introduce relevant documentary and viva voce evidence in answer to the application. Numerous exhibits were introduced into the record by the respondent. However much of the evidence adduced by him did not deal with the critical issues engaged in this application under s. 140 of the Courts of Justice Act. Rather, most of the evidence constituted attempts at re-litigating many of the issues that had been previously adjudicated and did not constitute relevant evidence for the purpose of this application.

[8] The affidavit evidence introduced on behalf of the Board was not subject to cross-examination by the respondent.

[9] The respondent submitted an affidavit in reply with numerous documents attached, which were not properly identified as exhibits. His affidavit was exclusively in the form of argument or submissions and was not responsive to the affidavit evidence adduced by the applicant. Thus, the evidence introduced by the applicant was essentially uncontradicted.

[10] As discussed below, the respondent has initiated 10 court actions against the Board and various members of the Peel Regional Police over the last seven years. Six of those claims have been dismissed and four were found to be frivolous and vexatious and to disclose no reasonable cause of action.

[11] In respect of those actions, the respondent has been ordered to pay in excess of $47,000 in costs. These costs remain unpaid.

[12] The record also shows that the respondent has been ordered to pay costs to defendants in other actions, not involving the Board or members of the Peel Regional Police, in excess of $92,000. Those costs also remain unpaid.

[13] The respondent has also been declared a vexatious litigant by the Human Rights Tribunal of Ontario (the “HRTO”), after having instituted 37 applications to the tribunal since 2015: John v. The Regional Municipality of Peel Police Services Board, 2019 HRTO 218.

[14] For the reasons outlined below, the relief sought by the applicant is granted. I find that the respondent has persistently and without reasonable grounds instituted proceedings in the courts of Ontario and has conducted such proceedings in a vexatious manner.

[15] He is therefore prohibited from instituting or continuing any proceeding in any court in Ontario, except with leave of a judge of this court as provided for at the conclusion of these reasons and in accordance with s. 140 of the Courts of Justice Act.

The Proceedings to Date and Prior Judicial Rulings

[16] Between 2012 and 2019, the respondent instituted 10 actions against the Board and its representatives. Counsel for the applicant submitted a chart summarizing these actions for the assistance of the court on this application. I have reviewed the details contained in that chart, which are consistent with the evidence submitted. For ease of reference the chart is set out immediately below:

[17] In addition to the actions against the Board and its representatives, the respondent has instituted at least 16 other actions which were summarized by counsel for the applicant in a chart. As an example of the details in that chart, the following is apt: Action #7 against PRP Defendants (Vol. 2: Tab 2KK)

As against the TPSB and Det. Fernandes (the “TPS Defendants”)

Mr. John was arrested and charged with criminal harassment of his former employer, a lawyer named Shahen Alexanian with whom he was involved in civil litigation
Mr. John alleged the TPS Defendants conducted a negligent investigation and laid a frivolous charge
This action against the TPS Defendants remains ongoing and will be consolidated or heard together with a separate action issued against the TPS Defendants (Supp.: Tab 2WW)

As against the Law Society of Upper Canada

Mr. John filed a complaint with the LSUC about Mr. Alexanian alleging that Mr. Alexanian lied in court and withheld files and the LSUC declined to investigate
Mr. John alleged that the LSUC has a culture of “not wanting to discipline their white lawyers when the complainant is a visible minority”
The LSUC requested that the action be dismissed against them pursuant to Rule 2.1
The court dismissed the action against the LSUC:
- Mr. John had not asserted any cause of action known at law that could possibly succeed
- Mr. John had failed to allege any facts to support a claim of malice
- The action against LSUC is frivolous, vexatious, and an abuse of process

As against Michael Simaan

Mr. Simaan is a lawyer who represented Mr. Alexanian and allegedly refused to return Mr. John’s correspondence and referred to Mr. John in a derogatory manner
Mr. Simaan requested that the action be dismissed against him pursuant to Rule 2.1
The court dismissed the action against Mr. Simaan:
- Mr. Simaan did not owe Mr. John a duty of care
- Mr. John had not asserted any compensable loss against Mr. Simaan
- The action against Mr. Simaan was frivolous, vexatious, and an abuse of process

[18] The court has dismissed eight of the actions instituted by the respondent as they were found to be frivolous, vexatious and an abuse of process.

[19] The respondent has been found to have instituted court actions for the purpose of relitigating previously adjudicated issues as follows:

(a) The respondent was summarily convicted in 2005 of criminal harassment and threatening bodily harm. His appeals from those convictions to both the Superior Court of Justice and the Court of Appeal for Ontario were dismissed. He then instituted an action seeking to reopen those convictions, admit fresh evidence and to stay the charges. The action was dismissed as a collateral attack: John v. Peel Police, 2016 ONSC 2013, at paras. 10-13.

(b) The respondent issued a further action with respect to the 2005 convictions where he alleged that the convictions were a product of wrongful conduct on the part of Toronto Police and he sought an order quashing the convictions. The claims relating to those allegations were struck: John v. Peel Police, 2016 ONSC 2012, at paras. 86-91.

(c) The respondent instituted an action against a Deputy Judge of the Small Claims Court following an unfavourable trial decision relating to the conduct of the Deputy Judge during the trial. No appeal had been taken from the trial decision: John v. Shaw (Brampton Court File No. 14 – 2873). The action was dismissed as being a collateral attack.

(d) Following the dismissal of an action brought by the respondent for failure to post security for costs, as had been ordered, the respondent instituted another action claiming the same relief, thereby attempting to relitigate the action which had been dismissed: John v. Peel Police, 2017 ONSC 4059, at para. 67.

(e) Following the settlement of litigation commenced by the respondent relating to breach of intellectual property rights and defamation, the respondent instituted a further action which was ultimately dismissed partly on the basis that the respondent’s settlement had extinguished any right to make a claim: John v. Richards, 2017 ONSC 6307; John v. Richards, 2017 ONSC 7231.

[20] The respondent has further been found to have brought civil actions for the purpose of harassing others and for other nefarious purposes.

[21] The applicant instituted a proceeding before the HRTO alleging discrimination on the basis of race when he was denied access to a YMCA facility. In the course of the application before that tribunal, he instituted a separate civil action against an employee of the YMCA. The defendant brought a motion seeking to dismiss the action pursuant to Rule 21 as frivolous, vexatious and an abuse of process. The motion came before me as the assigned case management judge. I concluded that the purpose of the plaintiff’s action was to manipulate and threaten the defendant named and the YMCA into retracting evidence adduced in the HRTO proceeding. As such the statement of claim was struck and the action dismissed as an abuse of process: John v. Samuel, 2018 ONSC 5651.

[22] The respondent has instituted numerous court actions that have been dismissed as they disclosed no reasonable cause of action and would obviously have failed:

[23] As to the respondent’s liability for costs, as noted, costs have been awarded against him in excess of $47,000 in favour of the Board and its representatives and costs have been awarded to defendants in the other 16 actions he has instituted in a sum exceeding $90,000.

[24] The respondent has repeatedly declined even to make submissions with respect to costs when invited to do so by the court, thus demonstrating that costs consequences represent no deterrence whatsoever in respect of his relentless litigation.

[25] The respondent has repeatedly demonstrated his disregard for his responsibility as a self-represented litigant to comply with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[26] The respondent has in one action referenced above threatened to note the Board and its representatives in default without ever having served a statement of claim.

[27] On an ex parte basis, he filed a submission in response to the Board’s Rule 2.1 request to dismiss his action.

[28] In another action he amended his statement of claim and added defendants to an action without the consent of the parties: John v. Toronto Police, 2016 ONSC 2015.

[29] He has failed to make proper production of documents in the course of litigation or answer undertakings: John v. TD Insurance, 2018 ONSC 7573.

[30] In an action where the respondent asserted that he had a video recording of his interaction with police and that this video was intended to supplement the audio recording that he had presented in support of his claim, rather than preserve and produce the video recording, the respondent gave it to a disbarred lawyer in Africa with instructions for him to give it to another person for safekeeping. The respondent claimed to have no way of recovering the video recording: John v. Peel Police, 2017 ONSC 4059.

[31] The respondent having initially consented to service of motion materials in a case by way of email, later reversed his position and refused to accept service because other counsel representing an impacted party on the motion was copied in the email.

[32] The respondent routinely failed to file materials in response to motions: John v. Peel Police, 2016 ONSC 2012; John v. Ballingall, 2016 ONSC 2245; John v. Richards, 2017 ONSC 7231; John v. Samuel, 2018 ONSC 5651; John v. TD Insurance, 2018 ONSC 7573.

[33] As to the evidence with respect to courtroom decorum, the respondent has, in the middle of a proceeding, simply packed up his file materials part way through a motion and left while counsel was making submissions: John v. Peel Police, 2016 ONSC 2012. Furthermore, he has arrived late at court several hours after court was to convene and he has declined entirely to attend a case management meeting as ordered: John v. Samuels, 2018 ONSC 5651.

[34] The respondent has repeatedly conducted himself in an abusive manner with all of those with whom he interacts in court and tribunal proceedings. His correspondence is regularly filled with vulgar, misogynistic and/or homophobic attacks on individuals in the court and tribunal system. A small sample of some of his regularly used language is sufficient for the purpose of this decision. His references to judges and arbiters have included the following: “racist bigot peace of shit”, “racist boy loving judge”, “fucking racist” “cock sucker”, “lowlife dog” “compensate [ing] for his small dick”, “child molester.”

[35] In reference to lawyers he has used the following references: “fucking faggot”, “pedophile”, “faggot boy loving bail Crown.”

[36] In referring to other parties in proceedings he has used the following references: “racist pigs”, “rapist”, “Peel pigs”, “racist mother fuckers.”

[37] The respondent had filed 37 applications to the HRTO between 2015 and 2017, and as a result of the tribunal’s concerns as to his conduct, the tribunal considered 21 pending applications before the tribunal to determine whether or not the respondent was a vexatious litigant.

[38] In its comprehensive reasons for decision of February 8, 2019, the tribunal declared that the respondent was a vexatious litigant and dismissed all of his pending applications. He was also barred from instituting any further applications without leave of the tribunal: John v. The Regional Municipality of Peel Police Service Board, 2019 HRTO 218.

[39] After having considered the applicable criteria for determining that the respondent was a vexatious litigant, the tribunal stated at para. 132:

Our determination of this issue largely flows from our reasons for the dismissal of the applicant’s current Applications above. The applicant’s multiple abuses of the Tribunal process in this case is the definition of vexatious litigation. Not only does it appear that many if not all of his Applications were not filed in good faith, his misconduct of many of them has been egregious. Moreover, his approach to litigation is not confined to the Tribunal. As discussed above he has doggedly pursued several police organizations in the courts and at the Tribunal with no success. Most of his civil claims were dismissed as frivolous and vexatious. When he was unsuccessful in the courts the applicant appears to have attempted to revive some of his claims at the Tribunal.

[40] Although in no way determinative of the outcome of this application, in considering this matter, I have reviewed the above decision of the HRTO in respect of non-judicial proceedings instituted by the applicant, solely for the purpose of assessing the bona fides of the legal proceedings that are the subject matter of this application: see Bishop v. Bishop, 2011 ONCA 211, at paras. 8-9.

Position of the Parties

The Applicant:

[41] The applicant’s position is that the respondent has and continues to abuse, harass and intimidate others with impunity and that his access to justice must be constrained and limited by an order pursuant to s. 140 of the Courts of Justice Act.

The Respondent:

[42] The respondent asserts that he has been a victim of bias by various judges and justices of the peace and that he has been the subject of racial discrimination in various proceedings in which he has been involved before the courts.

[43] He also asserts that he has been the victim of unlawful and unwarranted police harassment. He denies that he has initiated any frivolous or vexatious proceedings.

Applicable Legal Framework

[44] The legal basis for this application is s. 140 of the Courts of Justice Act, which states:

Vexatious Proceedings

140 (1) 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,

(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, s. 9 (17).

Repealed: 1998, c. 18, Sched. B, s. 5 (2).

Application for leave to proceed

(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. R.S.O. 1990, c. C.43, s. 140 (3); 1996, c. 25, s. 9 (17).

Leave to proceed

(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;

(b) the person making the application for leave may seek the rescission of the order made under subsection (1) but may not seek any other relief on the application;

(d) the Attorney General is entitled to be heard on the application; and

(e) no appeal lies from a refusal to grant relief to the applicant.

Abuse of process

(5) Nothing in this section limits the authority of a court to stay or dismiss a proceeding as an abuse of process or on any other ground. R.S.O. 1990, c. C.43, s. 140 (4, 5).

[45] This section codifies the inherent jurisdiction of the Superior Court to control and to prevent abuses of its own process, by authorizing the judicial restriction of a litigant’s right to access the courts: Ontario v. Coote, 2011 ONSC 858, at para. 63, aff’d 2011 ONCA 562.

[46] The purpose and intent of s. 140 are not to deny access to justice, but rather to ensure that vexatious proceedings are forestalled by the imposition of initial judicial oversight to enforce the requirement that a litigant not behave in a vexatious manner.

[47] It has also been noted that the ultimate effect of an order under s. 140 serves the public interest and is beneficial to all parties, including the vexatious litigant, by ensuring that the court is in control of its process and that a vexatious litigant and their opponents avoid further waste of time, money and judicial resources and facilities.

[48] Currently, the administration of justice is stretched to its outer limits both in terms of judicial resources and courtroom facilities. The court strives on a day-to-day basis to ensure ready access to justice and proper, fair and timely adjudication of all matters.

[49] With the ever-increasing costs of litigation, particularly in the areas of civil claims and family law, it is now commonplace for parties to represent themselves before the courts. While the courts must recognize and accommodate the rights of citizens to initiate and participate in civil and family cases without counsel, those parties must remember that they are subject to all of the applicable Rules of Civil Procedure and the same standard of proper and respectful conduct that would be expected of counsel. As was noted by van Rensburg J. in Coote, at para. 65:

“The courts must adopt a greater role as gatekeeper of the publicly-funded Justice system in an era where cases are delayed for months because of lack of available court time and other cases are stayed on the basis of delay (citations omitted).”

[50] Vexatious orders pursuant to s. 140 may be made by the Superior Court to prevent proceedings from being initiated in any court, including proceedings in appellate courts: Varma v. Rozenberg, at para. 5.

[51] In Re Lang Michener et al v. Fabian et al (1987), 59 O.R. (2d) 353 (H.C.), at para. 19, Henry J. identified the following principles with respect to vexatious proceedings:

(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.

This list is not exhaustive nor is it necessary for a litigant to demonstrate that all of the above principles apply in order to obtain an order under s. 140.

[52] An order declaring a litigant as vexatious is warranted where his purpose is harassment and oppression of other parties and not the assertion or defence of a litigant’s legitimate rights: Coote, at para. 67.

Analysis and Decision

[53] On examining the history, judicial determinations and results of the actions and proceedings initiated by the respondent, it is beyond question that the respondent’s conduct is vexatious and includes continuous attempts to do an “end run” around any applicable judicial or procedural constraint. His conduct, as outlined above in these reasons, is in line with virtually all of the features of vexatious proceedings identified in Re Lang Michener.

[54] He has initiated actions to determine issues which have already been determined by other courts of competent jurisdiction, including appellate courts.

[55] He has instituted several actions where courts have concluded that the actions could never have succeeded.

[56] Further, he has instituted actions for improper purposes, including the harassment and oppression of other parties by the institution of multiple proceedings for purposes other than for the assertion of his legitimate rights.

[57] As noted, he has been ordered to pay costs to parties in actions he has brought, such costs now unpaid and outstanding totaling in the order of approximately $140,000.

[58] It is evident that the parties who have been brought into litigation by the respondent have taken all necessary and proper steps to contain or eliminate unjustified and vexatious litigation through recourse to the Rules of Civil Procedure, however often unsuccessfully. It is irrelevant that the court has not thus far, on its own motion, determined that the respondent is a vexatious litigant.

[59] Based on the evidence adduced by the applicant and considering the applicable legal framework, I have concluded that Darren John is a vexatious litigant and that an order is required under s. 140 of the Courts of Justice Act to prevent his further abuse of the processes of our courts by his commencement and continuation of vexatious litigation.

Conclusion and Order to Issue

[60] An order will go in the following terms:

THIS COURT DECLARES that Darren John has persistently and without reasonable grounds instituted vexatious proceedings and conducted proceedings in a vexatious manner in the Ontario Superior Court of Justice, the Small Claims Court, the Divisional Court, and the Ontario Court of Appeal, within the meaning of ss. 140(1)(a) and (b) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
THIS COURT PROHIBITS Darren John, either directly or indirectly, from instituting any proceeding or continuing any proceedings previously instituted in any court in Ontario, except until such time as he has obtained leave pursuant to s. 140(3) of the Courts of Justice Act and as provided for in this order.
THIS COURT DIRECTS that any such application for leave shall be in writing and sent by fax or registered mail to the Regional Senior Justice of the Central West Region (the “RSJ”) ex parte, which shall be accompanied by an affidavit that outlines the merits of the proposed proceeding or step, and a copy of this Order. The application and affidavit shall not exceed ten pages in length. The application for leave will be determined by the RSJ or her/his designate, who will (i) give directions as to service of the application, which shall include service on the Attorney General, and the procedure for determination of the application; or (ii) dismiss the application.
THIS COURT ORDERS that any service on the Attorney General that is directed by the RSJ or her/his designate referred to in paragraph 3 of this Order shall only be given by registered mail addressed and sent as follows:

Attorney General of Ontario c/o Legal Director of the Crown Law Office – Civil 8th Floor, 720 Bay Street Toronto, Ontario, M7A 2S9
THIS COURT FURTHER ORDERS that should the respondent file material seeking to commence or continue a proceeding or any appeal in any court in Ontario without first filing an entered Order permitting him to do so, the proceeding shall be immediately stayed upon any person filing a copy of this Order in such court.
THIS COURT FURTHER ORDERS that no further proceedings will be accepted from the respondent for filing or scheduling by any court in Ontario without the approval of the RSJ or her/his designate.
THIS COURT FURTHER ORDERS that a copy of this Order be forthwith delivered to the Court of Appeal for Ontario and every region of the Superior Court of Justice, Divisional Court, and Small Claims Court.
THIS COURT FURTHER ORDERS that the applicant shall have its costs of this application. In the event the parties are unable to agree on the amount of the applicant’s costs, the applicant may within 15 days of this order serve on the respondent and deliver to my office written submissions on costs with the respondent’s submissions on costs to be served on the applicant and delivered to my office within 10 days of receipt of the applicant’s submissions. No reply submissions are to be filed without leave. All submissions on costs are limited to three pages plus a costs outline.
THIS COURT FURTHER ORDERS that approval of the form and content of this Order by the respondent is dispensed with.

Dated: February 19, 2020

Daley, RSJ. Released: February 19, 2020

The Regional Municipality of Peel Police Services Board v. John, 2020 ONSC 1058

Case Summary