Court File and Parties
COURT FILE NO.: 28071/19
DATE: 2020/01/21
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Peter Lembit Aloe, Erki Toomas Aloe, Alo Lumber and Building Supplies Limited, John Alo Developments Limited, and Alo Construction Co. Limited v. Valve Elisabeth Aloe-Gunnell
BEFORE: Ellies R.S.J.
COUNSEL: W. Scott, for the Applicants
Respondent, self-represented
HEARD: In Chambers
Endorsement
[1] In March 2019, the applicants commenced an application against the respondent in the Superior Court of Justice at Sault Ste. Marie. In the application, the applicants seek, among other things, a declaration under s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43 that the respondent is a vexatious litigant. As part of the relief requested in the application, the applicants seek an order that the respondent be prohibited from commencing or continuing any proceedings against “any parties” in any Ontario court without leave of a judge of the Superior Court of Justice.
[2] In April 2019, the respondent wrote to the court, requesting that the application be dismissed summarily under r. 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[3] The application in question is the latest in a long line of litigation between the parties, a line that began in 2002. Given the involvement of so many, if not all, of the Superior Court judges in Sault St. Marie at one time or another, it was ultimately determined that I would review the respondent’s request in my capacity as Regional Senior Judge for the Northeast Region.
[4] As it turns out, the respondent did not provide counsel for the applicants with a copy of her April 2019 letter to the court. This fact came to light recently when Tiiu Aloe, the respondent's sister, wrote to the court to inquire as to the status of the respondent’s request under r. 2.1. Ms. Aloe sent a copy of her email to a number of people involved in the litigation, including the applicants’ lawyer, William Scott. Mr. Scott then wrote to the court, setting out his clients’ position with respect to the respondent’s request and asking for a copy of the respondent’s April 2019 letter. Given my decision on the respondent’s request, it is not necessary to provide Mr. Scott with the respondent’s April 2019 letter and attachments in advance of releasing this endorsement.
[5] Rule 2.1 provides that the court may stay or dismiss a proceeding “if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.” The respondent submits that the issue of whether she should be declared a vexatious litigant has already been decided by the court. While I agree that the issue has already been raised, I do not agree that it has already been decided.
[6] The question of the respondent’s status as a vexatious litigant was raised in a motion brought by the applicants in 2014. At the time, the applicants were defendants in an action commenced by the respondent and Tiiu Aloe in 2002. That action had been settled by minutes of settlement that were incorporated into a consent order made by Koke J. on March 11, 2011. However, the respondent repudiated the settlement within days of Koke J.’s order, which touched off the many proceedings that followed it. One of those proceedings was the motion brought by the applicants in 2014. In the motion, the applicants sought a finding that the respondent was in contempt of court for various reasons relating to her failure to adhere to the order.
[7] The contempt motion was heard by Varpio J., who found the respondent in contempt for reasons released on January 12, 2015 (2015 ONSC 191). The respondent contends that the issue of her status as a vexatious litigant was decided in her favour in that proceeding. She points to the terms of the order made on March 24, 2015 by Varpio J. following the release of his reasons on the motion.
[8] The various claims for relief made in the contempt motion are set out in the preamble to the operative terms of the order. Paragraph 4 of the preamble (p. 3) reads:
- For a finding that Valve Aloe-Gunnell is a vexatious litigant who is obsessed with obstructing or interfering with the March 11, 2011 final order and intent on blocking, frustrating or forcing Scenic Hudson to decide not to proceed with the purchase;
[9] Paragraph 8 (p.7) of the March 2015 order reads:
- THIS COURT ORDERS THAT the relief sought by the moving parties which require [sic] viva voce evidence, be and the same is hereby dismissed as abandoned.
[10] The respondent argues that these paragraphs support her submission that the request to have her declared a vexatious litigant was dismissed in the contempt motion. However, that submission ignores the word "abandoned" in para. 8 and fails to consider another paragraph in the order that puts the word "dismissed" in context.
[11] The preamble to the operative terms of the order also sets out the evidence and the submissions of the parties in the contempt motion. The preamble begins (p. 4) with the words “UPON READING THE AFFIDAVITS OF” and continues later with the words “and upon”, after which paragraph “b.” reads (p. 5):
b. being advised that the relief sought for a declaration as a vexatious litigant has been abandoned; [Emphasis added.]
[12] Thus, it is clear from the order that the request to have the respondent declared a vexatious litigant was abandoned because the applicants did not wish to advance it at that time, not because they failed to do so. A dismissal for abandonment does not operate as a bar to a similar subsequent claim, because there has been no final determination on the merits: Stronski v. Day, [2008] M.J. No. 371 (C.A.), at para. 5. The application is not, therefore, on its face frivolous or vexatious or an abuse of process on the basis that the issue has already been decided.
[13] In the alternative, the respondent submits that the application is not necessary because the court has already ordered that she be required to seek the court’s leave to commence or continue any proceeding. Again, I agree only partially with the respondent. While I agree that such an order has been made, I do not agree that it renders the present application frivolous, vexatious, or abusive.
[14] At para. 7 (p. 7) of the March 2015 order, Varpio J. ordered that:
…Valve Aloe-Gunnell, or any entity she has created or may create, in which she holds a direct or indirect interest, be and the same is hereby prohibited from taking any further steps in this proceeding (or in any related proceeding in Ontario or any jurisdiction), without leave of this Court.
[15] The March 2015 order was the result of several decisions made by Varpio J. in connection with the 2014 contempt motion. The decision to require leave to commence or continue any proceeding was set out in his reasons entitled "Partial Reasons for Sentence", released on February 13, 2015 (2015 ONSC 1021). The concerns motivating the decision are contained in paras. 9 and 12 of those reasons:
[9] Given the duration of this litigation, the moving parties also seek some comfort that Ms. Aloe-Gunnell will not use the Court system to drag this matter out.
[12] In this case, I note the following:
The matter has been before the Court for more than 10 years;
Koke J.'s finding that Ms. Aloe-Gunnell has undertaken actions that have unduly delayed the completion of this matter; and
Ms. Aloe-Gunnell's two separate findings of contempt in this matter including the launching of a frivolous lawsuit in a foreign jurisdiction.
[16] At para. 13 of his reasons, Varpio J. wrote:
[13] Given the foregoing, I Order that Ms. Valve Aloe-Gunnell, or any entity she has created or may create, in which she holds a direct or indirect interest, is prohibited from taking any further steps in this proceeding (or in any related proceeding in Ontario or any other jurisdiction) without leave of the Court. Such an Order is necessary since Ms. Aloe-Gunnell’s litigation history demonstrates a pattern of using the Court system in a manner that creates undue and expensive delay. Seeking leave is a marginal inconvenience to Ms. Aloe-Gunnel while the potential prejudice associated with failing to grant the Order (as seen by the last three years of unfortunate litigation) is equally clear.
[17] I do not accept the submission that the March 2015 order makes the application in this case unnecessary. There are a number of differences between the leave requirement imposed by Varpio J. and the leave requirement that can be imposed after a finding is made that a person is a vexatious litigant under s. 140 of the Courts of Justice Act. For one, under s. 140, where a vexatious litigant seeks leave, the Attorney General is entitled to be heard on the application. This ensures that the public interest is represented at the hearing.
[18] For another, once a person has been declared a vexatious litigant under s. 140, the court can dismiss any proceeding commenced by that person summarily under r. 2.1.03 without any party needing to move for that relief under r. 37.
[19] More importantly, an order under s. 140 is an order in rem. It bars the vexatious litigant from commencing proceedings of any kind against any person. This is broader than the leave requirement imposed by Varpio J., which only prohibits the respondent from "taking any further steps in this proceeding (or in any related proceeding in Ontario or any jurisdiction), without leave of this Court" (para. 7).
[20] Thus, for this reason, the application in question is not on its face frivolous, vexatious or abusive as a result of the fact that Varpio J. imposed a leave requirement in his order of March 2015.
[21] For these reasons, the respondent’s request under r. 2.1 is dismissed.
Ellies R.S.J.
Date: January 21, 2020