COURT FILE NO.: CV-19-366-000 DATE: 2020-05-07

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Walter Zanewycz Self-represented, for the Plaintiff/Respondent

• and -

Cheadles LLP Mariam Moktar, for the Defendants/Applicants

HEARD: February 20, 2020, at Thunder Bay, Ontario

Mr. Justice W. D. Newton

Decision on Motion

Overview

[1] This is a motion by the defendants to strike the statement of claim.

[2] The plaintiff, Mr. Zanewycz, has sued his former lawyer, Mr. Shanks, and the law firm who represented him in an acrimonious custody and access dispute with his former spouse. The solicitor and client relationship ended in 2009 and the law firm’s accounts with Mr. Zanewycz were assessed by an assessment officer. Since then, there has been other proceedings between the parties over the collection of these accounts and others and claims by Mr. Zanewycz against Mr. Shanks. Currently, there is a bankruptcy proceeding brought by the law firm against Mr. Zanewycz pending.

[3] The defendants moved to strike this claim on the grounds that the statement of claim discloses no cause of action and is vexatious and an abuse of process.

Procedural History to Date

[4] On the first return of this motion a long motion was requested, and I set the return of the motion for December 13, 2019. Mr. Zanewycz had written directly to the Regional Senior Justice requesting a judge from outside the Northwest Region to hear this motion because he asserted that he would not get a fair hearing. In his submissions to me he repeated that request and alleged that I, and other judges within this region, have knowledge of certain facts that raise a reasonable apprehension of bias. Based on his submissions, I found no realistic basis for that submission and ordered that the motion proceed before me.

[5] On December 13, 2019, Mr. Zanewycz raised again the issue of bias and filed material which I treated as a formal motion for recusal. After submissions, I dismissed the motion for recusal with reasons to follow and adjourned the motion to January 27, 2020, peremptory on Mr. Zanewycz. My reasons refusing the motion for recusal are reported at Zanewycz v. Cheadles LLP et al, 2020 ONSC 126.

[6] On January 27, 2020, Mr. Zanewycz requested an adjournment because he stated that he had received an email from the Law Society of Ontario’s Compensation Fund and suggested that his claim against the defendants would be investigated and resolved through the Compensation Fund. I adjourned the motion, not for this reason, but because, through an administrative error, nine volumes of responding material that Mr. Zanewycz had filed was not before the court. I will comment upon that material later.

[7] On the hearing of this motion, Mr. Zanewycz requested an adjournment, once again, so that the Canadian Judicial Council could respond to his recently submitted 5000-page complaint regarding the judiciary in the Northwest Region. I denied his request for an adjournment.

Procedural History of Other Proceedings between the Parties

[8] In my reasons dismissing the recusal motion (Zanewycz v. Cheadles LLP et al, 2020 ONSC 126), I set out the history of other litigation to date as follows:

[9] The motion record on the motion to strike sets out the history of the litigation between the former lawyers and Mr. Zanewycz.

Assessment of Accounts (CV-09-0328)

[10] In 2006, Mr. Zanewycz retained William Shanks of the Cheadles law firm to represent him in matrimonial proceedings. The solicitor and client relationship ended in 2009. The law firm assessed some accounts owed by Mr. Zanewycz on July 21, 2009. By reasons dated November 5, 2009, the assessment officer determined that Mr. Zanewycz owed the law firm $27,887.51 plus interest.

Creditor Relief Actions (CV-09-0467 & CV- 10-0131)

[11] In 2015, the law firm brought a motion for an order that a writ of seizure and sale be issued against Mr. Zanewycz for $64,241.74. By reasons dated November 18, 2015, Cheadles LLP v. Zanewycz, 2015 ONSC 7166, Shaw J. reduced the amount owing from other accounts but denied Mr. Zanewycz’s request that the 2009 accounts be reassessed. As a result, the sheriff was directed to enforce execution against Mr. Zanewycz in the amount of $49,715.

[12] Mr. Zanewycz appealed Justice Shaw’s decision to the Divisional Court. That appeal was dismissed on December 21, 2016, Cheadles v. Zanewycz, 2016 ONSC 7909.

2015 Application by Mr. Zanewycz (CV- 15-0091)

[13] Mr. Zanewycz commenced an application against the law firm in 2015, before the motion before Shaw J. was heard. That application sought an order dismissing the action that was before Shaw J. and an order that the accounts assessed in 2009 be reassessed. On the motion before Fitzpatrick J., heard on May 18, 2017, that application was stayed (Zanewycz v. Cheadles LLP, 2017 ONSC 3521) pending the completion of certain steps by Mr. Zanewycz with the further direction that other motions be rescheduled after a further case conference. In accordance with those directions, Mr. Zanewycz served a draft amended Notice of Application which, in addition to other amendments that relate to the amounts owing on the prior accounts, raised allegations of negligence against the lawyer and sought a jury trial or, in the alternative, an order that a “Justice that does not sit in Thunder Bay … hear the trial.”

[14] Mr. Zanewycz appealed the stay order of the application to the Divisional Court and, on October 20, 2017, the Divisional Court dismissed Mr. Zanewycz’s motion for leave to appeal.

Motion re: Assessment Action (CV-09-0328)

[15] This is the motion I heard on December 14, 2017 which forms the basis of one of Mr. Zanewycz’s reasons requesting my recusal. The endorsement, made that day, sets out why Mr. Reason, on behalf of the law firm, sought an order allowing this action to continue. The endorsement states:

This action deals with the assessment of a solicitor’s account. An order was made by the assessment officer that Mr. Zanewycz pay to the Cheadles firm approximately $30,000. That amount remains unpaid. Over the years, there have been multiple proceedings seeking to enforce payment (09-0467), seeking payment of other fees (10-0131) and an application by Mr. Zanewycz seeking other relief (15-0091) where the sale of real property is sought to realize this judgment (08-0328).

By endorsement dated October 19, 2017, Warkentin RSJ., having conducted a review of this file (0328) deemed this action abandoned unless within 30 days the claimant showed cause why this action should not be deemed abandoned.

I heard submissions from Mr. Reason and Mr. Zanewycz. I am satisfied that because of the “parallel” proceedings this action has not been abandoned and that, further, to effect enforcement, this action should continue. Accordingly, I set aside the order of Warkentin RSJ.

Related to this is action number CV-15-0091 pending already before Fitzpatrick J.

I direct that any further motions in this action be heard by Fitzpatrick J. as set out in paragraph 19 and 20 of his endorsement in CV-15-0091 dated 7 June 2017.

Mr. Reason does not seek costs.

Case Conference (CV-09-0328, 09-0467, 10-0131 & 15-0091)

[16] On February 16, 2018, Fitzpatrick J. conducted a case conference in these actions (Cheadles LLP v. Zanewycz, 2018 ONSC 1235). The focus of the case conference was what to do about Mr. Zanewycz’s motion and attempts to amend his “dormant” application in court file CV-15-0091. Justice Fitzpatrick noted, at paragraph 8, that “Mr. Zanewycz has no valid complaint against the Cheadles’ accounts in the face of the decision of Shaw J. dated November 18, 2019.” With respect to the proposed amendments to the application Fitzpatrick J. stated:

I find the amendments proposed by Mr. Zanewycz are not proper pleadings. They are in large part statements of evidence, with quotes of judicial decisions sprinkled in. Also, the allegations arise from a solicitor client relationship that ended in 2009 with the accounts of the firm being assessed. There are serious allegations of fraud, misrepresentation, professional negligence, breach of contract and failure to account for trust funds. However, there is nothing in the text of the amendments which indicate Mr. Zanewycz only recently discovered the facts, or discovered them on or after November 10, 2015, which form the basis for why he has waited so long to attempt to incorporate these matters into his pleading. It seems to me the allegations are simply a “counter punch” to the process being brought against Mr. Zanewycz now, and are not legitimate or realistic claims which should burden both the court and the Cheadles firm as a responding defendant any longer.

If the proposed amendments had been made in time as I ordered in June, 2017, I would have anticipated that a further motion by the Cheadles firm would have been made to strike the amendments on the basis of a limitation defence or that they represent an abuse of process or at a very minimum that they do not represent a proper pleading. To date, this matter has taken up a good deal of the court’s time. The court does have the right to control its own process.

As I set out in the decision of June 7, 2017 at paragraph 17, the “un-amended” application appeared to me to be a collateral attack on the decision of Shaw J. of November 18, 2015. The proposed amendments make it clear to me that what Mr. Zanewycz is attempting to do is assert new causes of action, which are untimely, improperly pleaded and vexatious. The proposed amendments do not show that somehow additional accounts are available to be assessed. Rather, it shows Mr. Zanewycz wishes to tie up the Cheadles firm with these very serious allegations which have no business being asserted by way of application.

Accordingly, I am not going to allow Mr. Zanewycz to file his amendments or to continue with the application. The amendments were filed out of time. They represent an abuse of process. The original application is a collateral attack on a decision that has been upheld by the Divisional Court. It too is an abuse of process.

[17] For these reasons, Fitzpatrick J. dismissed the application brought by Mr. Zanewycz in CV-15-0091. The outstanding motions were scheduled to continue before Fitzpatrick J. on a date to be scheduled.

[18] Mr. Zanewycz’s appeal of this order was dismissed for delay by the Divisional Court on April 26, 2019. The other motions in the other actions have not proceeded. Three months later, Mr. Zanewycz commenced this action.

Responding Material Filed by Mr. Zanewycz on this Motion

[9] In addition to his motion record, factum, and multiple books of authorities, Mr. Zanewycz filed a number of volumes of material related to prior and other proceedings. This included the transcript from the proceedings before the assessment officer in July 2009, a volume of accounts from the law firm from October 2006 and March 2009, transcripts of the examination for discovery of Mr. Shanks in actions CV-09-0467 and CV-10-0131, transcripts from the cross-examination of Mr. Shanks in the bankruptcy action, and transcripts and motion materials filed on the motion in action number CV-09-0467 that was before Shaw J. in 2015.

Statement of Claim

[10] This new action was commenced by statement of claim delivered on July 22, 2019. An amended claim was delivered by Mr. Zanewycz after service of the notice of motion to strike the claim. Although counsel for the defendants argued that the motion should proceed on the basis of the original statement of claim, in the interests of finality, I decided to hear the motion on the basis of the claims set out in the amended statement of claim.

[11] In the statement of claim as amended, the plaintiff seeks damages of $2.45 million for “breach of contract, negligence, breach of trust, misrepresentation, and fraud.” The plaintiff also claims aggravated damages of $150,000, punitive damages of $75,000 and damages of $150,000 pursuant to the Family Law Act.

[12] It is alleged, at paragraphs 10 to 16, that Mr. Shanks was negligent in the conduct of a motion for interim spousal support on July 17, 2007 by failing to object to an unsigned financial statement and that Mr. Shanks was negligent by filing his own affidavit on a support variation application in 2008.

[13] At paragraphs 17 to 19, the plaintiff makes allegations against two lawyers who represented his former spouse who are not parties to this action.

[14] Paragraphs 20 to 32 set out the plaintiff’s allegations regarding the conduct of Mr. Shanks in the litigation regarding where the children of the marriage should reside. The trial took place in September 2009. Mr. Zanewycz asserts that Mr. Shanks and opposing counsel “forged” an order to the Office of the Children’s Lawyer respecting the court’s request for the assistance of the office on the trial. The plaintiff states that he “only recently discovered the forgery in the spring of 2019.” At paragraph 58, the plaintiff repeats the assertion that he became aware of the forged documents in spring of 2019.

[15] Paragraphs 33 to 51 sets of the plaintiff’s allegations with respect to the breakdown of the solicitor/client relationship and the results of the trial and its aftermath.

[16] Mr. Zanewycz alleges that Mr. Shanks failed to keep proper dockets and made misrepresentations to the assessment officer on July 21, 2000.

[17] No basis for the claim under the Family Law Act is set out.

[18] Mr. Zanewycz also filed an affidavit repeating the allegations of forgery and a volume of material which he says supports his allegations that the lawyers forged documents.

Positions of the Parties

[19] The defendants argue that the claim is frivolous and vexatious and an abuse of process as the claims are either collateral attacks on prior orders or claims that are either statute barred and/or without merit.

[20] Mr. Zanewycz, in his 91-paragraph factum, repeats many of the allegations made in the statement of claim. I distill his argument to be that a court must hear the entire history of his litigation since 2009 to determine that the defendants failed to properly represent him. As to limitation periods, the plaintiff submits that the principle of discoverability applies and that he has recently discovered the documents that were previously in the possession of his counsel that establish fraud/forgery and misconduct.

Analysis

Merits of the Proposed Claim

[21] The claims based on negligence arise from alleged acts of negligence in 2007, 2008 and 2009.

[22] As noted by Fitzpatrick J. in Cheadles LLP v. Zanewycz, 2018 ONSC 1235 at paragraph 15:

However, there is nothing in the text of the amendments which indicate Mr. Zanewycz only recently discovered the facts, or discovered them on or after November 10, 2015, which form the basis for why he has waited so long to attempt to incorporate these matters into his pleading.

[23] This statement of claim was issued on July 22, 2019. These claims are statute barred.

[24] Other claims are based on misrepresentations to the assessment officer in 2010. Those claims are also statute barred.

The Allegations of Forgery and the Office of the Children’s Lawyer

[25] In the statement of claim Mr. Zanewycz asserts that Mr. Shanks and opposing counsel “forged” an order to the Office of the Children’s Lawyer respecting the court’s request for the assistance of the Office on the trial. The plaintiff states that he “only recently discovered the forgery in the spring of 2019.” At paragraph 58, the plaintiff repeats the assertion that he became aware of the forged documents in spring of 2019.

[26] However, in the amended notice of application filed with Fitzpatrick J. prior to February 2018, Mr. Zanewycz, at paragraphs 46 to 51, asserted that Mr. Shanks “changed” the order to the Office of the Children’s Lawyer. Mr. Zanewycz, in the amended notice of action, stated that he was “deceived”, that this was “deceit” and a breach of fiduciary duty. These assertions directly contradict his statements in the present statement of claim that this “forgery” was only recently discovered in the spring of 2019.

[27] While it is not the purpose of this motion to assess evidence, again, in the interests of finality, I reviewed the documentation filed by Mr. Zanewycz (his exhibit book 6). This documentation does not demonstrate any fraud or forgery as alleged. Rather, the documentation demonstrates two lawyers following procedures for the implementation of the court request for the involvement of the Office of the Children’s Lawyer.

Frivolous and Vexatious

[28] Fitzpatrick J. in his reasons (Cheadles LLP v. Zanewycz, 2018 ONSC 1235) at paragraph 11 described the claims made in the prior application as “vexatious”.

[29] In Re Lang Michener and Fabian (1987), 59 O.R. (2d) 353 (H.C.J.) Henry J., in the context of vexatious litigant proceedings, reviewed the following principles that are also applicable to the case before me:

(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.

[30] All these characteristics are present in this case. Mr. Zanewycz seeks to keep contesting the order of the assessment officer from 2009. As noted, the claims in the present action are either statute barred or otherwise devoid of merit. Numerous judges have concluded that the plaintiff’s claims are not legitimate, but Mr. Zanewycz persists in forcing the defendants to engage in protracted and expensive litigation. Grounds and issues raised in the past continue to be raised and repeated. Costs have been awarded against Mr. Zanewycz and the cost awards remain unsatisfied. Costs are often an effective way for the courts to control conduct of litigants. Because he is, by his own admission, impecunious, Mr. Zanewycz is immune to costs orders. As the history of this litigation demonstrates, all appeals by Mr. Zanewycz have been unsuccessful. While the issue of whether Mr. Zanewycz is a vexatious litigant is not before me, all the characteristics of vexatious litigation are present in this case. The procedural history of this motion with Mr. Zanewycz’s many requests for adjournments and the reasons for those requests reinforces the conclusion that this litigation is vexatious.

Conclusion

[31] Accordingly, the statement of claim is struck as disclosing no cause of action and as a vexatious proceeding.

[32] The defendants shall have their costs of this motion. The defendants may deliver costs submissions limited to five pages plus costs outline plus authorities within 30 days. Any reply, subject to the same limitations, shall be delivered by Mr. Zanewycz within 15 days thereafter. Costs submissions shall be submitted electronically to the trial coordinator. No paper authorities are to be filed. Reference to authorities shall be by hyperlink if possible.

“Original signed by”

The Hon. Mr. Justice W.D. Newton

Released: May 7, 2020